ACJU: In the Way Of Co-Existence – Part II

By Farweez Imamudeen –MAY 19, 2018

Farweez Imamudeen

Polygamy and the ACJU

Following is another extract from the chapter of ‘Marriage and the judgments and rulings related to it’ in Thasyeer Mathan Abi Sujah,

“Marriage is recommended to whoever is in need of it. It is permissible for a free man to marry four free women at once, and for the slave to marry two. A free man does not marry a slave woman except under two conditions; not being able to give the dowry to the free woman and fear of fornication”

We shall only look at the first part of this legislation where it allows a free man to marry four free women at once. 

The verse that appears in the Qur’an regarding polygamy is as follows,

“Marry women of your choice, Two or three or four; but if ye fear that ye shall not be able to deal justly (with them), then only one (Nisa: 3)”

Qur’an is not a book of laws but it contains laws that were revealed to set order in a society that was given to chaos. Thus, the laws that were revealed at a certain time and place should be viewed in context. A legislator should then be wary of applying the same rule or law word for word in a different place and era. For a student of law this concept is not difficult to understand. For instance, although statutes become laws there are rules of interpretation – ie: Literal rule, Golden rule and Mischief rule – that are used to understand the meaning intended by the legislator. This is only a basic illustration to understand that laws are subject to interpretation since no law can escape the limits of time and space; however, what remains constant and guides the interpretation are the principles and values on which the laws were constructed (ie: justice, fairness and equality).

Public interest or Maslaha in Arabic is a principle of Islamic jurisprudence; a principle of legal interpretation that is derived from the fundamental source of Islamic jurisprudence; the Qur’an. A simple definition of it would be ‘That which leads to good’. In Islamic jurisprudence a purpose, or in other words the purpose of a law, ruling or legal code that does not lead to the fulfilment of some good (Maslaha), or the avoidance of mischief or evil is invalid.

According to Dr.Jasser Auda, a scholar in the subject of Islamic jurisprudence, Maslaha or public interest is the purpose/ goal  (Maqsid in Arabic) of Islamic laws. In other words a law that is in contradiction with public interest is no law at all.

So what was the purpose of this law when it was revealed in seventh century Arabia? 

The late former Justice of the Supreme Court of Srilanka and vice president of International Court of Justice in Hague, C.G.Weeramantry in his book ‘Islamic Jurisprudence: An International Perspective’, cites an interesting example of how certain Muslim majority countries have derived laws from the Qur’an based on the notion of women rights which is a part of public interest.

“The permissibility of polygamy under the rules of Islam has been one of the bases of severe attack by its critics. The relevant Qur’anic passage runs, ‘You may marry two, three or four wives but not more’. The passage goes on to declare, ‘…but if you cannot deal equitably and justly with all, you shall marry only one.’ The word equitably has been explained by jurists as meaning not merely equality in lodging, clothing and necessaries, but also equity in love, affection and esteem…on their interpretations of this verse many Islamic communities recognize monogamy as the norm.

It should be noted that the clauses qualifying polygamy are reinforced also by the Quranic passage, ‘you will not be able to be equitable between your wives even though you be eager to do so’ (4:129). It is noteworthy that Tunisia adopted the rule of monogamy on the basis of this clause and that Muhammad Abduh (d.1950) the reformer and Grand Mufti of Egypt often said that no husband can be just to more than one wife under modern living conditions (Khadduri, 1978).”

What follows is an astonishing revelation,

“Majid Khadduri places this whole matter in an interesting perspective when he asks whether the Quranic law was meant to confirm the principle of polygamy or to reform it by imposing qualitative and quantitative restrictions on its practice. He suggests that the Quranic law concerning marriage, rather than intending to ratify the widely prevalent practice of polygamy, sought to reform it as far as was possible at the time. The ultimate intent of the Prophet, according to his view, was ‘to transform marriage from a polygamous to a monogamous relationship’. The ultimate objective of Quranic marriage law, then was to legitimate monogamy, rather than to endorse polygamy”

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