God did not make lawful anything more repugnant to Him than divorce. Reported saying of the Prophet Muhammad, Sunan Abi Dawud1
A woman knows (that is, comes to know with certainty) that her husband has divorced her thrice; the husband denies having divorced her; and the woman has not the ability to prevent the husband from (having access to) her person: it is permissible to the woman to kill the husband; because she is helpless in preventing mischief to her person; and, therefore, it shall be allowable to her to kill him; but it is proper that she should kill him with drugs, and not with an instrument of death; because if the woman should kill him with an instrument which inflicts wound, she shall be put to death by way of kisas (or retaliation).
Fatawa-I-Kazee Khan, Hanafi legal text2
The image of a husband repudiating his wife by declaring “I divorce you, I divorce you, I divorce you” has been one of the most persistent and negative stereotypes of Muslims. And while it does not tell anything resembling a complete story, this image has a basis in reality. So-called triple divorce, while widely considered blameworthy even among the earliest Muslims, is nonetheless still practiced in many places. Recent controversies over its use have erupted in India and in Malaysia. In the former case, the All-India Muslim Personal Law Board considered whether to declare that all such triple pronouncements would be considered to effect only a single divorce; in the latter case, the issue at stake was whether such divorces were valid if delivered via text message. Both situations were complicated by the intricate and multilayered relationship between civil and religious law, a tension that exists within every Muslim community to a greater or lesser extent.3 Divorce is a contested issue for Muslims in nations where personal laws are ostensibly religious as well as in those places, such as the United States, where civil law alone holds formal sway. Why is a husband’s unilateral, and extrajudicial, pronouncement of talaq so meaningful to Muslims who otherwise abide by civil laws? What are the structural considerations at stake in attempts to make divorce regulations more egalitarian? How does this treatment of divorce in the writings of the jurists relate to American Muslims? The premodern case, cited in this chapter’s epigraph, of a wife whose husband has pronounced the powerful words of divorce but refuses to admit having done so, rendering the state powerless to intervene and forcing her to resort to poison to thwart his sexual advances, has surprising relevance to contemporary discussions on the relationship between individual acts, ethical practice, and enforceable law.
Its religious dimensions notwithstanding, Muslim marriage is, above all, a contract. Though it will persist until death if neither spouse takes action to dissolve it, a marriage can also be ended before that time. There are both good and bad reasons for ending a marriage, according to Qur’an, sunnah, and the opinions of the commentators and jurists, and good and bad ways to proceed with divorce whatever the motivations behind it. It is a well accepted principle that disharmony between spouses should not lead immediately to divorce. The Qur’an advocates reconciliation where possible, through negotiated settlements between the spouses themselves or arbiters from their families.4 However, there will be instances when mutual good treatment is not possible; in such cases, there should be an amicable parting. This negotiated settlement may involve the wife’s payment of a sum to her husband; normally, in case of talaq, he must not take back anything of what he gave her as dower.5 The Qur’an contains a variety of regulations concerning these and other forms of divorce (such as the now-obscure zihar and li‘an), which built on and modified pre-Islamic Arab practices.
The English term “divorce” encompasses several means of ending a marriage that are distinct in Islamic jurisprudence. The most common, talaq (literally, “release”), is a unilateral repudiation of the wife by the husband. This form of divorce does not require the wife’s consent, and most of the classical jurists held that it was valid even without her notification. Talaq can be either revocable (raj‘i) or irrevocable (ba’in). In a revocable divorce, the husband has the right to take back the wife during the three menstrual cycle waiting period (‘idda) that follows the dissolution of all consummated marriages.6 However, following the end of the waiting period from a revocable divorce (or after an irrevocable form of dissolution such as judicial divorce or divorce for compensation, on which see below), the couple can still remarry. This is the case even after two divorces. However, when the husband repudiates the wife for the third time, the divorce becomes “absolute.” In this case, the spouses cannot remarry until the wife has married another man, and that marriage has been consummated, then ended through death or divorce. Only after this can the original spouses remarry.7
Triple divorce, talaq thalatha, occurs when a husband pronounces three repudiations at once rather than divorcing his wife once, revocably, and simply allowing the waiting period to expire without taking her back. In this way, he immediately makes his divorce of her absolute, creating a bar to remarriage between them. The Sunni jurists generally consider triple repudiation, or other similar pronouncements that lead to absolute divorces (talaq al-batta), to be reprehensible (makruh). Yet even while considering such divorces blameworthy, the vast majority of Sunni thinkers – Ibn Taymiyya is a notable exception – hold that they are effective and binding. (Shi‘i jurists hold a much more restricted view of what means of divorce are legally valid, requiring, not merely preferring, the presence of witnesses, and considering only one pronouncement of divorce at a time valid. This dramatic difference illustrates quite clearly that Sunni doctrine was the result of interpretive decisions, and could have been otherwise.8)
Just as marriage has financial implications, so does divorce; in fact, they are closely intertwined. A wife divorced by talaq retains the dower she received at marriage or, if it was divided into a prompt and deferred portion, the deferred portion becomes immediately due at divorce. Predictably, the prospect of receiving or having to pay a large deferred sum can serve as inducement or restraint on a spouse’s actions. Some women set a large deferred dower as a disincentive for their husbands to divorce them impulsively. However, this strategy can backfire if the wife is the one to seek a divorce. In khul‘, divorce for compensation, a wife returns her dower, waives the deferred portion, or pays some other sum to her husband in order to obtain a divorce. Almost all jurists consider his consent essential though it is not mentioned in the Qur’an or in some of the prophetic traditions that refer to it. Khul‘ is by definition irrevocable; the husband has no right to take her back during the waiting period, though the pair may remarry subsequently by mutual consent with a new contract and dower.9
In addition to unilateral repudiation and divorce for compensation, both of which are mentioned in the Qur’an, judicial divorce (firaq, faskh or tatliq) becomes permissible when the wife has cause. Judicial divorce is preferable to khul‘for a wife who has grounds because she need not relinquish her claim to dower. Acceptable grounds for divorce vary widely among the legal schools. In the Hanafi school, which is the most restrictive, a woman has almost no grounds for obtaining a divorce provided her husband has consummated the marriage; neither failure to support her, nor life imprisonment, nor abuse is considered grounds for divorce (although she may get a separation and support if she convinces a judge). If he is declared missing, she may have the marriage dissolved (on grounds of presumed widowhood) at the time when he would have completed his natural lifespan, which could be as old as ninety. In contrast, Maliki law allows the most generous grounds for a woman to seek divorce including non-support, abandonment, and the broad charge of “injury” (darar), which can be physical or otherwise.
Women can use other legal strategies to obtain access to divorce without recourse to a judge. For instance, in conditional or delegated divorce the wife includes a condition in her marriage contract that allows her the right to divorce on her own initiative under certain specific circumstances, or states that she will be automatically divorced if a particular event occurs such as the husband taking another wife or moving to another town. There are possible benefits to these types of stipulations, if women have the requisite knowledge and are willing and able to convince future spouses to agree to the conditions, but they are not a panacea for inequalities in traditional divorce law. The extent to which such clauses in the marriage contract are enforceable varies widely in legal schools or contemporary national laws. Further, even clauses that were originally valid can be easily rendered ineffective through the wife’s unwitting actions. More troubling still is that though these conditions can increase a woman’s access to divorce, they do not restrict in any way the husband’s right to repudiate her unilaterally at will. The increasingly influential view of marriage as a romantic rather than contractual institution often makes women unwilling to negotiate for or demand stipulations in their contracts, seeing them as a sign of bad faith.10 In any case, the inclusion of such stipulations regarding divorce ratifies the notion that unilateral divorce by the husband is valid and effective, since conditional and delegated divorces function through the mechanism of talaq. Thus, it is contradictory to press for such stipulations regarding divorce while simultaneously arguing that a husband’s right of unilateral talaq is not supported by the sources. If his talaq is not valid, then any conditional or delegated divorce right she has is equally void. (One way to avoid this conflict is to insist that the only permissible divorce is a judicial divorce; however, this raises its own set of issues surrounding the validity of civil law versus religious law.)
This sketch of legal doctrine seems to provide a fairly bleak picture for Muslim wives, but a number of historians have demonstrated that in practice women have enjoyed a good deal of flexibility in obtaining divorces on favorable terms, thanks to sympathetic judges and a variety of bargaining strategies, frequently involving claims to dower, maintenance, and custody of children. Looking at the way “Islamic family law translate[d] into the reality of medieval marriage,” Yossef Rapoport finds that women’s economic independence, among other factors, facilitated woman-initiated divorce, although the unrestricted nature of male oaths of repudiation contributed to the high divorce rate.11 Twentieth-century legal reforms in nations such as India, Egypt, and Iran (both pre- and post-revolution) have sometimes dramatically improved women’s access to divorce and have, to a lesser extent, penalized men’s unrestricted use of talaq. The progress of such reforms has been hampered by continual struggles over “authenticity” and the self-aggrandizing tendencies of the modern nation-state to work to bring everything under its control. The relationship between civil and religious marriage and divorce is complex even in nations such as Pakistan, where both are ostensibly Islamic, but for Muslims in primarily non-Muslim societies the dictates of classical legal thought, as they have trickled down into conventional wisdom, remain influential.12
The regulations surrounding divorce that I have just outlined do not directly account for the extreme case, mentioned in this chapter’s epigraph, where Qadi Khan gives a woman permission to defend herself against her former husband’s sexual advances even to the point of killing him – discreetly:
A woman knows (that is, comes to know with certainty) that her husband has divorced her thrice; the husband denies having divorced her; and the woman has not the ability to prevent the husband from (having access to) her person: it is permissible to the woman to kill the husband; because she is helpless in preventing mischief to her person; and, therefore, it shall be allowable to her to kill him; but it is proper that she should kill him with drugs, and not with an instrument of death; because if the woman should kill him with an instrument which inflicts wound, she shall be put to death by way of kisas (or retaliation).13
This fatwa attempts to resolve an intractable problem. By divorcing his wife three times, the man has rendered her absolutely divorced from him, making sexual relations between them completely unlawful. However, his denial of the divorce is accepted as final.14 (The legal efficacy of his declaration is taken for granted; the reponse does not even allude to it.) What, then, may his “wife” do in this case? She is certain of having been divorced and that therefore it is no more lawful to allow her husband to have sex with her than it would be for her to allow a stranger access to herself; her (former) husband is at this point legally a stranger. Failing to resist him in some fashion would be morally, if not legally, tantamount to consenting to illicit sex; she has the right (or perhaps obligation) to defend herself against such an attack, even to the point of killing her would-be rapist. What might be a mundane evidentiary dispute over whether or not a divorce has occurred becomes a life or death issue.
In allowing the woman to pursue the dictates of religious law and her conscience, Qadi Khan recognizes a distinction between the law applied by God, which grants the woman the right to defend herself against his advances, and that followed as a matter of procedure by the state, which, bound as it is by procedural rules, is only an approximation thereof. Although the man in question is trying to have sexual access to a woman over whom he no longer has any sexual rights, he cannot be brought before the authorities as a rapist, because the law as applied by the state authorities would still recognize him as her husband. The text thus differentiates between the morally permissible action – killing him – and the legally acceptable one.
This distinction between what is acceptable to God and what is acceptable to the state influences the solution arrived at by Qadi Khan, following Abu Hanifa: the woman may kill her “husband” provided she does so with “drugs,” not a “weapon.” Why is poisoning acceptable, while killing in some other fashion is not? Although Qadi Khan may have been influenced by the view that it was unladylike to kill using a weapon, the more salient rationale is that if she were simply to kill him by stabbing, for example, the fact of his having died an unnatural death would be obvious, and a culprit would be sought and punished. It is not fair that a woman should be subject to execution in retaliation for having defended herself against sexual assault, but she has no way of proving what transpired. Her testimony that she killed in order to avoid his attempt to have intercourse with her after he had divorced her absolutely would not be exonerating in this circumstance, just as it would not be considered adequate to prove her divorce itself. Thus, one can deduce that Qadi Khan grants permission to poison the ex-husband in order that his unnatural death escape detection. If it does not become known or cannot be proven that he has been deliberately killed (as would most likely be the case before the introduction of sophisticated forensic methodologies), then her actions will not come under scrutiny, she will not have to provide justification for them, and hence the issue of the reliability or legal worth of her testimony as to her motive for killing him – the fact of his having divorced her and denying it – will not come up.
Prominent seventeenth-century Palestinian Hanafi mufti Khayr al-Din al-Ramli’s treatment of a similar case confirms this analysis. In this instance, “an evil man who harms his wife, hits her without right and rebukes her without cause” has, after swearing to divorce her “many times”, finally done so. When she is able to demonstrate “that a thrice divorce had taken effect,” the mufti declares that “it is permissible for her to kill him, according to many of the ‘ulama’, if he is not prevented [from approaching her] except by killing.”15 Because the divorce is proven, she is granted permission to kill him if he attempts to have sex with her. The juxtaposition of these two fatwas illuminates the existence of two distinct types of legal rules. Those that govern the wife’s ability to kill her husband in the case addressed by Qadi Khan, where she cannot prove the divorce, can only be moral – she will be absolved of guilt in this case, and will not have to answer to the divine for a transgression. However, though her killing him is religiously licit, if she is brought before temporal authorities, she will be subject to retribution because her testimony cannot be accepted on this question. In Khayr al-Din’s case, however, the divorce is proven; the woman’s ex-husband is legally a stranger and she can defend herself against his advances even to the point of killing without fear of retribution.
In Qadi Khan’s fatwa, the entire matter revolves around the inadmissibility of the wife’s testimony. Why is it that a wife’s testimony cannot be accepted regarding talaq? It is not, as might be supposed, an issue of women’s testimony having less weight than men’s but rather an issue of “plaintiff” and “defendant.” Although one Qur’anic verse attributes different weight to male and female testimony, and jurists have further limited the range of cases in which women can testify, in numerous matters related to marriage the words of husband and wife are equivalent. Yet in discussing the wife’s response, Qadi Khan does not even suggest that there might be any possible way for her to seek judicial recognition of his divorce of her. Allowing women’s word to count with regard to their own divorces would open up the floodgates to women claiming to have been triply repudiated – likely to cause more trouble for the Hanafis in particular, given the extremely limited grounds on which women could seek divorce.16 In Qadi Khan’s implicit calculation of the relative harm in each case, to allow this man’s death is acceptable in a way that tampering with the overall weight of rights granted to husbands in matters of divorce would not be.
The Hanafi solution, however, is not palatable to everyone. Moralistic traditionist-jurisprudent17 Ibn Hanbal confronts the same question, several centuries before Qadi Khan arrives at a different ruling. First, the wife should seek to ransom herself from her husband in divorce for compensation. Though he does not say so directly, one can deduce that this is merely a strategy to get him to recognize the divorce. It will have no legal effect, since no marriage actually exists after his absolute divorce. If her husband refuses to allow this but rather compels her to remain “married” to him, “She should not adorn herself for him, nor should she come near him, and, if she possibly can, she should escape from him.” Asked specifically “Should she fight him, when he desires her?” Ibn Hanbal hesitates. “I do not know,” he replies. “She should not fight him. Abu Hanifa said she should fight him. She should escape from him if she can.”18 The wife here has the obligation to resist sex, but this should be accomplished by non-combative means. Ibn Hanbal’s invocation of Abu Hanifa’s view perhaps serves to give his listener an option beyond what he is willing to endorse.
The burden is on the woman to place herself out of reach, sexually, whether she hears the divorce pronouncement herself (according to Ibn Hanbal, “Her case is strongest” in this instance) or hears the testimony of two witnesses who can be trusted. In a case where there were witnesses, presumably she could have used their testimony to establish that her husband had in fact divorced her. Perhaps in this case her escape is a short-term measure until the witnesses can give testimony publicly to the fact of her divorce, resulting in the clarification of her marital status. If there are no witnesses, she has even stronger justification for escaping. But what exactly does it accomplish in that case? Ibn Hanbal does not say, as the text moves on to discuss an unrelated matter. If a woman escapes, presumably back to her natal kin, what happens to her marriage if her husband continues to insist that he has not divorced her? She loses her right to support and remains unable to remarry – though she avoids the collusion in illicit sexual acts, she cannot end her marriage (while her erstwhile husband is free to take another wife). Unlike in the Hanafi scenario where she kills him, she remains tied to him until and unless he acknowledges dissolving the marriage.
Cases such as those just discussed are extreme, not representative. Though judges were undoubtedly faced regularly with “claims and counterclaims” regarding the occurrence of divorce, it is impossible to know whether any particular case ever resulted in killing.19 One of the limitations of working with legal handbooks and compilations, rather than archival documents, is that it is not possible to determine what discussions are in response to actual events and what is merely hypothetical. Particular scenarios can garner jurists’ attention far out of proportion to their likelihood of occurring, simply because in resolving the legal issues at stake, challenging legal points can be illustrated or clarified. My choice of this dramatic example to discuss divorce was meant to illuminate, in a tangible way, the extensive, unilateral privilege held by husbands in the realm of divorce. Only once this is understood can contemporary discussions of talaq and its reform be more fully comprehended.
Reforms to divorce laws in the contemporary Muslim world have been plentiful.20 Most of these reforms have attempted to either restrict men’s unfettered exercise of their rights to talaq or to increase women’s access to divorce for cause. Some majority Sunni nations have accomplished the first aim by requiring some type of intervention or registration from a judge, or by declaring that three repudiations pronounced at once will count as only one divorce, as in the recent Indian debate.21 Other nations, such as Iran, have imposed financial penalties on a husband who divorces his wife without cause. Despite these attempts to curb men’s impulsive and extra-judicial use of talaq, almost all courts ultimately consider talaq pronouncements legally effective since they are recognized by religious authorities. The widely held view that a husband’s pronouncement of talaq is religiously valid regardless of whether approved by a court, and regardless of whether or not it contravenes provisions of civil codes, constitutes a major stumbling block for efforts to reform divorce law in those nations where putatively Islamic family codes hold sway. In some ways, the codification of marriage and divorce laws has reduced the flexibility that women of the upper classes may have enjoyed in the past.22 Though reforms have altered some of the specifics of divorce laws, they have not challenged the basic idea that divorce is a man’s prerogative, while women may only obtain divorce for cause.
A more recent Egyptian law, approved by the chief jurist of Al-Azhar, the most respected institution of traditional learning in Egypt and perhaps the entire Sunni Muslim world, provides an alternate approach. As noted above, the vast majority of premodern jurists as well as contemporary national laws have considered the husband’s agreement essential to khul‘, divorce for compensation. Beginning in March 2000, Egypt granted the wife the right to obtain a khul‘ divorce from a judge without the husband’s consent if she returns the dower she received at marriage.23 Judicial khul‘ has been legal in Pakistan since the middle of the twentieth century, meaning that a wife who does not have effective grounds for divorce for cause may seek this type of divorce, returning her dower and getting out of a marriage in which she refuses to remain.24 Similar legislation has yet to pass elsewhere, but I think it likely that eventually more reforms of this type will pass; khul‘-on-demand is the most egalitarian reform possible without a major transformation of the legal structure of marriage. It is reasonably fair, given the role of dower, that women cannot collect dower and then proceed to divorce without any fault of the husband’s. To the extent, though, that women who have grounds for judicial divorce may be induced to forgo financial rights in order to obtain khul‘ it could lead to injustice. Uncontested khul‘ has faced serious resistance wherever it has been proposed, as a violation of the husband’s rights.25 Women, it has been alleged, are too emotional to wield control of divorce.26
In the case of Muslims living in the United States and other nations where Islamic law is not implemented by civil courts, the relevance of modern legal reforms is minimal; and classical Islamic doctrine matters only where individuals take it into account in extrajudicial interpersonal negotiations. While it is relatively straightforward to combine an “Islamic” marriage with a civil one – religious authorities are frequently authorized by state legislatures to perform valid civil marriages – only the civil courts may pronounce divorce. A couple married both religiously and civilly can be in the awkward position of being only civilly divorced (if the wife insists on the necessity of a divorce pronouncement that the husband refuses to make) or only religiously divorced, if the husband pronounces talaq long before the civil court takes action. For the most part,American Muslim leaders have chosen to treat a divorce pronounced by the courts as the equivalent of judicial divorce in classical Islamic law, but the coexistence of civil law with an amalgam of jurisprudential doctrines and Muslim conventional wisdom makes for a confusing situation. Further, for those committed to egalitarian marriages, the existence of talaq as a religiously acceptable institution creates obstacles to full marital agency for women.
Talaq is so problematic because it is an entrenched right connected to the legal structure of marriage as a form of milk, ownership or control. A husband’s power of talaq derived from his exclusive control over the marriage tie, just as a master’s power of manumission resulted from ownership of a slave. Pre-modern jurists frequently drew analogies between talaq and manumission (‘itq), reflecting their shared understanding that a husband, like the master of a slave, held milk, “ownership,” over the tie joining the parties. This right was basic to the nature of marriage: the husband acquired a limited milk over his wife at the time of contract through payment of a dower, just as a master acquired milk through purchase of a slave; either could unilaterally relinquish it whenever he chose. The wife, as the one bound by the marriage tie, did not share in this power of unilateral divorce (any more than a slave could simply choose to free him- or herself). Instead, her opportunities to dissolve the marriage were limited to judicial divorce for cause, grounds for which varied greatly depending on the school; delegated divorce if authorized by her husband; and khul‘, divorce for compensation, which was roughly analogous to a slave’s negotiated purchase of his or her own freedom. Of course, the analogy can only be carried so far: a wife was not her husband’s slave. But because the structure of the Islamic marriage contract presumes the husband’s milk, control, over the continuation of the marriage, piecemeal reforms of divorce laws that do not address this basic norm will be limited in the amount of change they can ultimately effect. Long-lasting and far-reaching reform of divorce requires, more fundamentally, a reform in the basic structure of Muslim marriage itself.
In many countries, the primacy of civil law over “Islamic law” has been accepted in numerous realms of law, including commercial, but the repeated appeals by various actors to the authenticity of Islam with regard to rules regulating family life and sexuality has meant that in matters associated with women and family, regulations are still purportedly “Islamic.” Muslims living someplace where there is a civil system of marriage and divorce with no pretensions to being based on a religious law face different challenges. In the United States, courts deal routinely with divorces among Muslims; divorces are granted to both wives and husbands on the same grounds available to any other couple. The regulation of divorce is fraught with difficulties because, aside from the interpersonal challenges, it is normally interwoven with other crucial elements of marriage structures, including who has the right to dissolve the marriage and with what financial claims. Despite claims by a number of feminist scholars and women’s advocates to the contrary, inequities in divorce law – which many Muslims would agree exist – are not merely read into the Qur’anic text by misguided or even misogynist jurists. They are not anomalies that can be remedied by the simple expedient of appeals to men’s better nature. The necessary shift in patterns of talaq must recognize that it is deeply embedded in Muslim marriage as a whole system.
Perhaps a sensible marriage and divorce structure for Muslims living in nations such as the United States, where dower is not a customary part of marriage practices among the broader population and where all divorces must go through the courts, might exclude both dower and all forms of extrajudicial divorce – claims that are closely linked in traditional jurisprudence. It would be possible to make financial arrangements as well as other household contributions the subject of a prenuptial agreement validated by the American legal system, and insist that civil marriage and divorce are the only licit forms of relationship. If marriage is structured in such a way that it can be dissolved only by a judge, whether by mutual consent or otherwise, that would eliminate much of the dual-system conflicts over the validity of unrecorded divorce pronouncements in numerous Muslim-majority countries. This is not entirely unheard of: one lesson of Qadi Khan’s case, in addition to the one about the male abuse of authority, is that state authority can override certain jurisprudential doctrines, even as those doctrines guide individual life and action.
Appeals to religious sensibilities have emerged in several attempts to entice North American Muslims to participate in shari‘a tribunals or parallel mediation/arbitration systems.27 Such tribunals, though undoubtedly well meant, would likely be disastrous for women’s rights, even leaving aside the fact that there has not been substantive discussion as to how to guarantee the qualifications of those assigned to arbitrate. At best, women might get a sympathetic interpretation of doctrines understood to be Islamic, but it is highly unlikely that they would get sophisticated modifications of legal rules. My objections to the formation of Islamic law courts in the West do not extend to individual Muslims choosing to follow particular legal doctrines in their personal affairs (what Abdullahi An-Na’im refers to as “voluntary compliance out of religious commitment”28) or with “independent scholars providing moral guidance to their communities on [a] private voluntary basis.”29 And it is certainly possible to write contracts that enshrine religious rights and duties for spouses – at least financial ones – in a way that makes them enforceable by Western courts.30 Individuals should be free to negotiate those contracts, with as much information as possible about both classical and reformist interpretations of rights and obligations. However, if consenting to participate in Islamic arbitration becomes possible on a wide scale, it will also become a mark of faith, and those who choose not to will have to contend with accusations of not being good Muslims, when they may simply not believe that a shari‘a court is capable of providing a realistic and appropriate rendering of Islamic principles into a just verdict in a context radically different from that where the law was first formulated.
Setting aside the influence of human historical factors on the development of the law, there is also the question of the contextuality of the Qur’anic revelation itself. Despite the reflexive praise for Islamic legal flexibility, there is a broad unwillingness to interfere with elements of marriage practices, such as divorce, that are explicitly referred to in the Qur’an. But are the verses on divorce meant to apply in every possible situation, or are they specific in some way to seventh-century Arabia? If they can be modified, on what basis should one do so, and how far can one go in altering specific rules? What is taken as common sense by many ordinary Muslims (the twenty-first century West is quite different from either the seventh-century West or the contemporary Muslim world and hence rules should be different) is still controversial for numerous Muslim leaders and scholars.