414

bo o k re vi ews

Robert Gleave
University of Exeter
E-mail: R.Gleave@exeter.ac.uk
doi:10.1093/jis/etr066
Published online 2 September 2011

The Islamic Marriage Contract: Case Studies in Islamic Family Law

Edited by Asifa Quraishi and Frank E. Vogel (Cambridge, MA:
Harvard University Press, 2008), 375 pp. Price HB 22.95. EAN 978
0674028210.
The articles making up this volume grew out of a three-day international
workshop held at the Harvard Law School in 1999 that brought together
lawyers, activists and academics to discuss Islamic marriage law as a contractual
phenomenon, and the legal and social implications for conceiving Islamic family
law as at least partially contractual rather than simply a form of status. The
results are quite impressive and will be useful to any scholar interested in Islamic
family law, but legal scholars working in the area of family law or international
human rights law will find it particularly useful.

Downloaded from http://jis.oxfordjournals.org/ at Brunel University on January 25, 2012

composed relevant work outside of the collection). An exception to this general

trend is Fierros study (ch. 13) of the divorce mechanisms available in Maliki law
for the battered wife, in which comparative cases are mentioned and explained.
However, here as elsewhere there is a greater potential for comparative study.
There is, then, an unavoidably uneven coverage in a volume of conference
proceedings, even when supplemented by commissioned articles. It seems unjust
to list areas which are not covered in the volume, when so much effort has been
made to ensure a breadth of coverage. However, every academic has his or her
hobbyhorse, and my complaints here reflect my own. There is, within the 20
papers presented here, scant reference to, and no specific study of, Twelver Shi6i
court activity in any period. This may reflect the state of the field, and the rather
less than plentiful sources for the pre-modern period when compared with sijill:t
and other sources for the various parts of the Sunni world; perhaps such a
contribution was planned, but did not make the final edit. While one accepts that
universal coverage is an impossible demand, one would have hoped for a token
inclusion, particularly since the field of Shi6i legal studies is so under-developed.
Having expressed this gripe, one has to admit that this volume represents the
single most important available source for the analysis of q:@s and their role in
the operation of the law in Muslim contexts. A competitor volume does not exist.
Whatever complaints one may have about subject coverage, coherence, and the
difficulties in abstracting from the case studies any general picture of the
operation of Islamic judgeship, this volume (in a similar way to its sister volume
of fatw:s) establishes the role of the q:@ as a subject of major importance within
both legal and Islamic studies.

bo o k re vie w s

415

Downloaded from http://jis.oxfordjournals.org/ at Brunel University on January 25, 2012

The volume is divided into four parts: comparative law of marriage as a

contract in Catholicism, Rabbinic Law and classical Islamic law (three articles);
the historical practice of the Islamic marriage contract (four articles); the modern
Islamic practice of the Islamic marriage contract (six articles); and the
recognition of the Islamic marriage contract in Europe (two articles). A short
introduction (pp. 27) by the editors gives an overview of the books contents.
Teachers of Islamic family law will find the first chapter of the book, Kecia
Alis Marriage in Classical Islamic Jurisprudence: A Survey of Doctrines
(pp. 1145), especially helpful. Ali provides a useful outline of basic family law
doctrine among the four Sunni schools of law as well as that of the primary
school of Shi6i jurisprudence, the Ja6fari. (Because this is a work that is focused
on the marriage contract, I must correct what would otherwise be a minor
technical error: Ali states that for all the Sunni schools, with the exception of the
Hanbalis, conditions such as monogamy or place of residence are void. That is
incorrect, at least for the Malikis. Rather, the rule is that although such a
condition is morally binding as a promise, it is not enforceable before a court.
Were it void, of course, it would have no moral affect whatsoever, as is the case
with conditions that negate the essential terms of the contract.)
Charles Donohues brief article focuses on the question of comparative family
law, and concludes that the principal points of difference between canon law and
Islamic law are monogamy, the prohibition of divorce, and the relative
unimportance of the marriage contract (as opposed to the marriage itself), the
family, and anything concerning property (p. 55). He then raises the provocative
question of [w]hether these major doctrinal differences make comparative study
a fruitless exercise, or whether they make the possibility of comparative study
even more interesting (p. 55). Unfortunately, Donohue does not himself provide
an answer to this important question and instead leaves it to the reader to decide.
It would have been very interesting to hear his answers to this question. From the
perspective of this reviewer, both positions are true: it is a relatively fruitless
exercise to engage in doctrinal comparison between canon law and Islamic law
because in many respects they are incommensurable: the goal of the canon law
was primarily the regulation of a spiritual institution whereas for the Muslim
jurists, the Islamic law of marriage was primarily concerned with the secular
institution of marriage. On the other hand, from the perspective of a practical
lawyer, comparative analysis of the two systems is both important and relevant,
especially to the extent that both systems of marriage regulation continue to have
salience in structuring and regulating marriage in the modern world. In this
regard, one must always remain vigilant against the risk of confusing a sectarian
conception of marriage with an essential attribute, especially in light of todays
culture wars that often centre around the definition of marriage.
With Suzanne Stones article, the Islamic law scholar will find himself
confronting doctrine that seems much more familiar than that of the canon law.
Stone provides a brief but general introduction to Jewish law and its intersection
with non-Jewish (secular) law, and then provides an overview of the history of
Jewish marriage and divorce law. Unlike the canon law, the concerns of Jewish

416

bo o k re vi ews

Downloaded from http://jis.oxfordjournals.org/ at Brunel University on January 25, 2012

law overlap substantially with those of Islamic law, and provide for interesting
comparisons in matters of detail, e.g., ownership of the dower, the wifes right to
wages, etc. (pp. 689). The discussion of the interaction of Jewish law with U.S.
law will be particularly useful to contemporary lawyers and legal scholars who
are interested in the vexing question of family law pluralism, especially in liberal
democracies.
Amira Sonbols article on the history of marriage contracts in Egypt focuses
largely on the Islamic marriage contract, and provides its richest descriptions in
connection with the marriage contracts of the Ottoman period. Sonbol also
devotes substantial space to discussing modern Egyptian marriage contracts,
largely to decry the rigid nature of modern Islamic marriage contracts relative to
those of the Ottoman as well as earlier periods in Islamic and pre-Islamic Egypt.
She attributes the greater rigidity of modern marriage contracts to the rise of the
nation state and the introduction of family codes. This is not an unfamiliar claim,
but it seems puzzling: nothing in modern Egyptian family law precludes parties
from including stipulations of the sort Sonbol describes so well in her article, so it
is hard to understand how codification (which largely took the form of replacing
certain rules of the Hanafi school with non-Hanafi doctrines) could be to blame.
Judith Tuckers and Brinkley Messicks pieces both deal with the problem of
consent in the marriage contract. (Indeed, I wish they had appeared consecutively
in the book rather than as chs. 5 and 7, respectively.) Tuckers article focuses on
the complexities related to determining the extent to which the legal requirement
of female consent was in fact respected in seventeenth and eighteenth century
Palestine and Syria. Although she noted that marriage contracts registered in the
courts at that time reflected accurately formal legal requirements, including that
of the brides consent, in most cases the brides consent is usually offered by way
of an agent, thus interposing a layer between the formal legal institutions and the
bride herself, which makes it difficult to determine whether her consent was
actual rather than merely formal, at least from the judicial records by themselves.
If some readers question why Tucker raises doubts as to the reliability of the legal
records when it comes to the fact of female consent to marriage, Messicks article
on a mid-twentieth century marriage dispute from Imamic Yemen provides vivid
detail on how questions of consent could in fact be highly-contested empirically,
as well as manipulated by parties, when conflicting material interests were at
stake in the validity of a marriage. Amalia Zomenos article on the Islamic
marriage contract in Andalusia is the only article in the work that deals with
Muslim marriage practices in North Africa, and her piece provides a solid
doctrinal overview of normative Maliki practice, and the relationship of legal
doctrine to the practice of the document writers (ahl al-wath:8iq).
The six pieces on modern Islamic marriage practices consist of four pieces on
practices in specific Muslim jurisdictions representing a broad cross-section of
the Muslim worldEgypt, Malaysia, Saudi Arabia and Iranand two pieces on
the challenges of Islamic family reform, one in the Sunni context and the other in
the Agha Khanid Isma6ili community.
Nik Noriani Nik Badli Shah, a Malaysian lawyer and activist, provides an
overview of Malaysian family law, with its unique combination of statutory,

bo o k re vie w s

417

Downloaded from http://jis.oxfordjournals.org/ at Brunel University on January 25, 2012

Shafi6i, and case law, the latter being in conformity with Malaysias common law
heritage. Of some interest in this regard is that the Shafi6i doctrine with respect to
conditional divorce (tamlk) is much more restrictive than either the Hanafis or
the Malikis, thus making it more difficult to introduce restrictions on polygamy
into the marriage contract as a stipulation in the Malaysian context than in
non-Shafi6i regions of the Islamic world. Shahs piece should be read in
conjunction with Zainah Anwars informative article on the efforts of the
influential Islamic feminist organizationSisters In Islamto advocate more
gender egalitarian family laws throughout the Muslim world, but particularly in
Malaysia.
Lisa Winns piece on marriage contracts in Saudi Arabia makes the important
point that although the contractual nature of marriage, including the use of
stipulations to grant the woman greater rights than she would enjoy at law, is
used by Saudi women, it is almost inevitably the womans family that insists on
inserting such provisions, not the woman herself. Accordingly, although
contractual stipulations can and are used to enhance the position of Saudi
women, the contractual process does not, in fact, function as a tool for advancing
the individual autonomy of Saudi women.
Ziba Mir-Hosseinis contribution on family law in Iran, specifically on the
prospect of Iranian women obtaining the right to divorce at will, casts light on
the dynamics of post-revolution Iran in family law. On the one hand, the
revolutionary regime was committed to Islamizing the family law in conformity
with its revolutionary project, which meant repealing the family law passed
during the Shahs reign, and the practical need to give Iranian women greater
rights than traditional Shi6i fiqh recognized. Particularly revealing is
Mir-Hosseinis suggestion that Khomeini himself, had it not been for fear of
backlash, was prepared to recognize a womans right to automatic divorce on the
argument that a husbands refusal to divorce her, in circumstances where the
woman sought a divorce from him, itself constituted a legal harm (@arar) that
provided grounds for a legal divorce. (p. 223).
Mona Zulficars contribution on the Muslim marriage contract in modern
Egypt provides a dense account of the politics and legal analysis of recent
developments of Egyptian family law, and the attempts by feminist forces to use
the contractual structure of Islamic law to effect substantial family law reform.
Ultimately, conservative political forces in Egypt blunted the most radical
contractual provisions, but the movement could be considered a success insofar
as it was instrumental in leading to the khul6 law of 2000 as well as increasing
public awareness of the contractual nature of the Islamic marriage contract,
including the right of women to include provisions in the contract that
would provide them additional protections. Zulficars chapter also includes five
appendices with useful translations of various provisions from modern Egyptian
family law and of government form-marriage contracts which will no doubt
prove valuable to researchers.
Ali Asanis contribution on the history of family law reform in the Isma6ili
community is valuable, if only because it sheds light on this small, but important
Muslim community that continues to be little studied. While the piece is

418

bo o k re vi ews

Mohammad Fadel
University of Toronto
E-mail: mohammad.fadel@utoronto.ca
doi:10.1093/jis/etr065
Published online 12 August 2011

Downloaded from http://jis.oxfordjournals.org/ at Brunel University on January 25, 2012

generally optimistic with respect to the progress that community has achieved in
the last one hundred years in promoting gender equality within the family, it may
surprise many readers that despite the status of the Agha Khan as an Im:m with
theoretically unchallengeable interpretive authority, the Agha Khan has in fact
been forced to proceed cautiously in making additional family law reforms out of
fear of generating a backlash among the more conservative members of his
followers who have grumbled that these reforms are less about Islam than
imitating the West.
The last two chapters deal with how the Muslim marriage contract has fared
in two different European jurisdictions, Germany and the United Kingdom.
Christina Jones-Paulys piece provides a very detailed treatment of the contradicting approaches German courts have taken toward the Muslim marriage
contract. Richard Freeland and Martin Laus overview of how British courts have
received the Muslim marriage contract, while not as lengthy as Jones-Paulys, is
equally useful. Both of these articles lead to the following significant observations. First, the way in which a Western jurisdiction will interpret the Muslim
marriage contract will depend, in the first instance, on the structure of its
domestic law. Accordingly, because Germany (as well as other continental
jurisdictions) applies rules of private international law to marriage, Islamic
family law has, for a considerable time, been a subject of judicial treatment in
Germany. In addition, German judges have struggled to determine whether a
Muslim marriage contract, in particular the dower, should be treated as a
commercial contract, or part of family law, and if the latter, then it can only be
treated as part of the law of maintenance in connection with family dissolution.
In Great Britain, on the other hand, precisely because it was not possible for
British judges to consider Islamic marriage contracts as part of family law, and
because British law applies the law of the domicile to family law disputes, British
judges could only enforce Islamic marriage contracts to the extent they could be
considered ordinary contracts.
This collection of articles on Islamic family comes at a time when politics in
North America, especially in the United States, has become infected with a toxic
brew of anti-Muslim bigotry, centred around the fear that Islamic law, the
Shar6a, will displace U.S. law. While it is nave to believe that even first-rate
scholarship can successfully counter nativist politics, one may realistically hope
that scholarly efforts such as this can at least create a firewall against the more
rapid spread of bigotry.