By Rami Koujah
This post is part of a series of posts on the latest publication in our Harvard Series in Islamic Law, Hossein Modarressiâ€™s Text and Interpretation: Imam JaÊ¿far al-á¹¢Ädiq and His Legacy in Islamic Law. This series of posts take a deeper dive into the book, which examines the main characteristics of the legal thought of ImÄm JaÊ¿far al-á¹¢Ädiq, a preeminent religious scholar jurist of Medina in the first half of the second century of the Muslim calendar (mid-eighth century CE).
In an earlier post on á¸¥adÄ«th forgery, I noted the importance of reading the sources with breadth, depth, and common sense. Professor Hossein Modarressiâ€™s discussion of mutÊ¿a marriage in Text and Interpretation provides a model for this type of research. Considering how uniquely muddled this topic is, Professor Modarressi sheds considerable light upon the issue and reasons for confusion. He also suggests that we might never be able to fully understand the contours of this institution. What we can reasonably conclude, however, is that it was not a license for licentiousness. As he writes, â€œThe case of mutÊ¿a â€¦ offers a spectacular example of how á¸¥adÄ«th developed as an effective tool in early sectarian debates of the late Umayyad and early Abbasid period to defend orthodoxy.â€
A simple definition of mutÊ¿a marriage, a time-limited union, is as follows: â€œMutÊ¿a marriage means that a woman is married for a [limited] period. For example, a man may say, â€˜I wed you to my daughter for one month, or one year, or until the end of the [á¸¥ajj] season, or until the arrival of the á¸¥ajj pilgrims,â€™ or the like, whether the duration is known or unknown.â€ The legality of this institution is hotly contested along sectarian lines, with ShÄ«Ê¿Ä« jurists permitting it and SunnÄ« jurists, for the most part, forbidding it. So polarizing was the subject that some SunnÄ« jurists regarded its prohibition as backed by nothing less than unanimous consensus (ijmÄÊ¿), while in another report, clearly fabricated for reasons explained below, JaÊ¿far declares belief in the permissibility of mutÊ¿a as an article of faith.
Two things are nearly certain, and all Muslim jurists agree on bothâ€”whether SunnÄ« or ShÄ«Ê¿Ä«. First, mutÊ¿a was permitted by the Prophet and practiced during his lifetime. Second, the second caliph, Ê¿Umar b. al-Khaá¹á¹Äb, decreed its impermissibility in no uncertain terms. The question of disagreement revolves around whether Ê¿Umarâ€™s declaration was a restatement to an ignorant public of the fact that mutÊ¿aâ€™s permissibility had been abrogated sometime before the Prophetâ€™s death or whether Ê¿Umar himself changed the law, and whether he had the authority to do so. The ShÄ«Ê¿a unanimously condemn Ê¿Umar for his executive overreach, while the SunnÄ« schools of law of the post-formative era argue that mutÊ¿aâ€™s prohibition was established on the authority of both the Qurâ€™Än and á¸¥adÄ«th, but mostly the latter.
The problem, as noted by Muslim and non-Muslim scholars, is that the á¸¥adÄ«ths that speak to the legality of mutÊ¿a are wildly contradictory. á¸¤adÄ«ths regarding the year in which the Prophet purportedly abrogated the permissibility of mutÊ¿a varied so widely that some SunnÄ«s resorted to tortured attempts at reconciling them. MutÊ¿a was abrogated twice, one argued, and seven times according to another.
Moreover, Ê¿AlÄ« b. AbÄ« á¹¬Älib (the fourth Rightly Guided Caliph, and the first ImÄm of the ShÄ«Ê¿a) and Ibn Ê¿AbbÄs (a cousin of the Prophet and Ê¿AlÄ«) each have various reports attributed to them, some of which permit mutÊ¿a and others of which deem it abrogated. The character of some of these reports is telling. Both Ê¿AlÄ« and Ibn Ê¿AbbÄs are represented as having criticized Ê¿Umar for his ban against mutÊ¿a. Yet in one report, Ibn Ê¿AbbÄs, though well known by both SunnÄ«s and ShÄ«Ê¿Ä«s to have considered mutÊ¿a to be lawful, is berated by Ê¿AlÄ« for his ignorance regarding its abrogation. Conveniently for SunnÄ«s, and drawing on the topos of antemortem penitence, Ibn Ê¿AbbÄs is also reported to have repented on his deathbed for his opinion on mutÊ¿aâ€™s lawfulness.
Reports of other authorities are just as confused. JaÊ¿far al-á¹¢Ädiq is sometimes represented as an active campaigner for mutÊ¿a, and at other times as someone who discourages it. Even the opinion of Ê¿Umar himself could be confused.
As discussed in an earlier post, all of these early figures were key targets of á¸¥adÄ«th forgers who aimed to create authoritative bases for disputed issues of law in early Islamic societies. Â á¸¤adÄ«th forgers exploited these figuresâ€™ authority in the context of sectarian disputes like this one, especially given the significance of their viewpoints on this specific issue. The forgers provided ample ammunition to both sides of the debate. Although the date of the purported abrogation could never be pinned down â€” the á¸¥adÄ«ths are â€œimpossible to reconcile and none can be verified,â€ wrote the Andalusian MÄlikÄ« jurist Ibn al-Muzayyin â€” it took well over a century for the SunnÄ«s to even agree on whether the Prophet or Ê¿Umar was the source of the prohibition.
How, then, to navigate the á¸¥adÄ«th forgery fray? The methods of traditional isnÄd criticism, the common link approach, or isnÄd-cum-matn analysis are far from conclusive, especially on a matter as politically and theologically charged as this one. Such formalistic methods also commit the fallacy of historical positivism, or the â€œnotion that particular methodologies generate Truth.â€ My previous post remarked on a â€œthick descriptionâ€ approach, of which Professor Modarressiâ€™s discussion of mutÊ¿a is an example with respect to JaÊ¿far al-á¹¢Ädiqâ€™s view, as he explicitly disclaims an interest in a comprehensive analysis of the reports. An abridgment of Professor Modarressiâ€™s study was presented in the previous blog post. Here, I want only to highlight one intriguing aspect of his investigation: the role of common sense.
Common sense reasoning is of course common in Islamic historiography, but I do not think my point will be banal. What we can glean from Professor Modarressiâ€™s study is its localized quality; in other words, there is no general Common Sense, but only common sense in context. The notion might smack of subjectivism and bias, but not so when we consider that it is context which furnishes the ground upon which common sense treads. There is also no sense in defining common sense, lest we revert to another kind of formalism. Rather, I will let Professor Modarressiâ€™s discussion illustrate the point.
The context (or at least some of it): mutÊ¿a was a sectarian controversy; certain authorities were popular mouthpieces utilized by forgers to bolster their positions; specific authorities could carry additional weight in sectarian disputes; á¸¥adÄ«th transmission and forgery was diffuse and ad hoc (that is, similarly motivated individuals did not act in concert; hence the contradictory reports supporting similar viewpoints); and the exclusive authoritativeness of the Prophetic Sunna developed well after Ê¿Umarâ€™s death. SunnÄ«s, therefore, had a clear incentive to backdate the prohibition of mutÊ¿a to the lifetime of the Prophet and represent a consensus among early authorities common to both SunnÄ«s and ShÄ«Ê¿Ä«s. That is why some interpreted Ê¿Umarâ€™s promulgation as an act of relaying the Prophetic legislation to an ignorant public: Ê¿Umar lacked the authority to prohibit what the Prophet considered permissible.
In the first/seventh century, Ibn Ê¿AbbÄs and fellow scholar-jurists of Mecca, as well as other prominent Companions and Successors â€” who were all recognized as authorities by later SunnÄ« scholars â€” held the view that mutÊ¿a was permissible. How is it then, Professor Modarressi questions, that the Meccan jurists and students of Ibn Ê¿AbbÄs had never heard of mutÊ¿a being abrogated during the Prophetâ€™s lifetime considering that this is an issue that would have been widely reported? That seems contrary to common sense. Consider also a further implication: The Qurâ€™Än sets strict limits on sexual morality â€” â€œdo not even go near adultery (zinÄ), for it is surely an indecency and evil wayâ€ (Q 13:32). Could then the flipped legal status of a sexual relationship contracted by mutÊ¿a, which would have made it zinÄ, have gone unnoticed by so many?
The anti-mutÊ¿a party was keen to undercut their opponents by forging reports that represented Ibn Ê¿AbbÄs as deeming mutÊ¿a forbidden. But by standards of common sense recognized by SunnÄ« á¸¥adÄ«th scholars themselves, limited narrations on a topic that should and would have been widely known are clear forgeries. Professor Modarressi comments:
The simple fact that a good number of these reports put the same message, though with discrepancies in timing and wording, in the mouths of those Companions â€”Ê¿AlÄ« and Ibn Ê¿AbbÄs in particular â€” who were commonly believed to have objected to the caliphâ€™s decision in this case, seems to be a clear attempt to rebuff the caliphâ€™s opponents in this matter, and makes one extremely suspicious about the provenance of these reports.
One wonders whether the views of later SunnÄ« jurists, specifically MÄlik b. Anas and Aá¸¥mad b. á¸¤anbal, were likewise met with tampering. á¸¤anafÄ« sources often represent MÄlik as condoning mutÊ¿a, and according to the á¸¤anbalÄ«s, Aá¸¥mad b. á¸¤anbalâ€”on one narrationâ€”considered the practice lawful but disliked.
Notice, also, that the dispute is only on whether, when, and by whom the permissibility of mutÊ¿a was repealed. If the Prophet had considered mutÊ¿a marriages to be acceptable, for any period, it must have been because he considered it to be a morally acceptable union. Yet, by arguing that mutÊ¿a was permitted only due to the necessity of exceptional circumstances â€” namely, in the context of war in which amorous soldiers left their wives behind â€” SunnÄ«s were implicitly suggesting that mutÊ¿a was a form of prostitution, a transaction of sex for money. But it is inconceivable, Professor Modarressi writes, based on the internal logic of Islamic law and ethics, that the Prophet would have condoned an immoral institution. It would certainly contradict the entire ethical thrust of the Qurâ€™Än and the Prophetâ€™s teachings. This accords with common sense.
Three additional points show a concordance with common sense. First, the evidence that it was an exigent dispensation is lacking. Second, the analogy to the QurÊ¾Änic permission to eat carrion (Q 2:173) to avoid starving does not work. On the principle of proportionality â€” implicit in the verseâ€™s limitation that necessity is a license so long as one is â€œneither coveting nor transgressingâ€ â€” masturbation seems a far less drastic solution. The case of carrion also does not involve the â€œthird party harmsâ€ that prostitution does. It would not be far-fetched to imagine that had something of the sort been condoned then an industry would have emerged to service soldiers and garrisons, as seems to have been the case for pilgrims during the á¸¥ajj season in Mecca. Surely the Prophet would have considered that. Moreover, if the point of a mutÊ¿a contract is to establish paternity, would it not risk self-defeat by instituting such measures for itinerant soldiers who were having sex with women only because they were so far from the homes to which they were meant to return? What sense is there in stressing paternity when fathers would have practiced mutÊ¿a in situations that would have made it extremely difficult to care for a child?
For Professor Modarressi, the notion that the Prophet approved of mutÊ¿a, which had been a pre-Islamic practice, sheds considerable light on the character of the institution:
If it was ever allowed by the Prophet, mutÊ¿a must have been, in the non-Muslim Arab society of his time and earlier, an acceptable form of legal union between a man and a woman in a personal relationship. If it was allowed, for it to be consistent with the requirements of an Islamic union by definition, it must have entailed a minimum sense of mutual responsibility and protection, together with comfort and affection, as mentioned in the QurÊ¾Än [30:21] as the ultimate wisdom behind the union of a man and a woman as partners in a personal relationship, even if for a specified span of time. It must have been a contract that embodied the major legal requirements of a marriage as understood at the time, as well as its attendant consequences, such as assignment of paternity for any children born into the marriage and possibly a waiting period for the woman after its termination.
It was banned during the time of Ê¿Umar, Professor Modarressi argues, because the practice was being abused. Some jurists validated suspiciously ephemeral unions, as few as several hours or one encounter, under the law of mutÊ¿a. He states that such practices â€œwould naturally compromise the marital nature of the institution, potentially reducing it in some instances to a mere exchange of sex for money, the legal definition for prostitution.â€ That explains the reason for which JaÊ¿far al-á¹¢Ädiq described such arrangements as unlawful sex, or fornication (zinÄ).
What JaÊ¿far was condemning is the abuse of the law, or what some term legal loopholes (á¸¥iyal). Of course, laws can always be manipulated towards desired ends. For example, the misyÄr marriage, a practice condoned by modern WahhÄbÄ« jurists, permits a man to enter into a marriage with a woman with the intention to divorce her without requiring him to disclose his intention. This seems to be the reason behind Ê¿Umarâ€™s ban and JaÊ¿farâ€™s criticisms of mutÊ¿a as a practice in his time reserved for the â€œlicentious.â€ Ultimately, as discussed in the previous post, we may not know what mutÊ¿a looked like in practice during the lifetime of the Prophet or the early caliphate. But a common sense reading of the early sources can go a considerable way in showing what it probably did not look like, and why it was made to look a certain way.
 Hossein Modarressi, Text and Interpretation: Imam JaÊ¿far al-á¹¢Ädiq and His Legacy in Islamic Law (Cambridge: Harvard University Press, 2022), 255-56.
 Ibid., 248 (quoting Ibn QudÄma, MughnÄ«).
 Al-ZurqÄnÄ« claims that differences of opinion existed up until the end of Ê¿Umarâ€™s caliphate, after which a consensus emerged regarding its prohibition. Muá¸¥ammad b. Ê¿Abd al-BÄqÄ« al-ZurqÄnÄ«, Shará¸¥ al-ZurqÄnÄ« Ê¿alÄ Muwaá¹á¹aâ€™ al-ImÄm MÄlik, ed. á¹¬ÄhÄ Ê¿Abd al-Raâ€™Å«f SaÊ¿d, 4 vols. (Cairo: Maktabat al-ThaqÄfa al-DÄ«niyya, 2003), 3:233; Arthur Gribetz, Strange Bedfellows: Mutâ€˜at al-nisÄâ€™ and Mutâ€˜at al-á¸¥ajj: A Study Based on SunnÄ« and ShÄ«â€˜Ä« Sources of TafsÄ«r, á¸¤adÄ«th, and Fiqh (Berlin: Klaus Schwarz Verlag, 1994), 160, 162.
Â Gribetz, Strange Bedfellows, 55. Regarding another sectarian debate, SunnÄ«s deemed belief in the permissibility of wiping over oneâ€™s boots in satisfaction of ablution to be an article of faith, while ShÄ«Ê¿Ä«s and IbÄá¸Ä«s likewise regarded the belief in its impermissibility. Similar views were held regarding the recitation of the opening formula of the Qurâ€™Än in prayer. Hossein Modarressi, â€œCommon IbÄá¸Ä«/ShÄ«Ê¿ite Legacy: Examples from the Ritual Law,â€ in Ibadi Jurisprudence: Origins, Developments, and Cases, eds. by Barbara Michalak-Pikulska and Reinhard Eisener (Hildesheim; ZuÌˆrich; New York: Georg Olms Verlag, 2015), 111-19, esp. 111-13.
 Gribetz, Strange Bedfellows, 56.
 According to the MÄlikÄ«s, the prohibition of mutÊ¿a is based on the Sunna and not the Qurâ€™Än. ZurqÄnÄ«, Shará¸¥, 3:234-35.
 Modarressi, Text and Interpretation, 251, 251 n. 50.
 Gribetz, Strange Bedfellows, 19-21 (contradictory reports on Ibn Ê¿AbbÄs), 161-62 (contradictory opinions attributed to Ê¿AlÄ«).
 Modarressi, Text and Interpretation, 256; Gribetz, Strange Bedfellows, 58.
 Gribetz, Strange Bedfellows, 20.
 SunnÄ«s disagreed on whether he recanted his view. ZurqÄnÄ«, Shará¸¥, 3:234-35; Gribetz, Strange Bedfellows, 20, 20 n. 61.
 Gribetz, Strange Bedfellows, 78-79, 82.
 Modarressi, Text and Interpretation, 254 (quoting Ibn á¸¤azm, Muá¸¥allÄ, that some said Ê¿Umar permitted it on the condition of having two upright witnesses).
 Ibid., 252 (quoting Ibn al-Muzayyin, Mufhim).
 See ibid., 252-54.
 As already made clear in the case of traditional isnÄd criticism. Based on his common link approach, Joseph Schacht concluded that the prohibition of mutÊ¿a originated around the time of al-ZuhrÄ« (d. 124/742). See Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1967), 266-67 (cited in Gribetz, Strange Bedfellows, 17). Schacht, however, focuses on a narrow set of reports. For another criticism of Schacht, see I. K. A. Howard, â€œMutâ€™a Marriage Reconsidered in the Context of the Formal Procedures for Islamic Marriage,â€ Journal of Semitic Studies 20 (1975): 82-92, esp. 89-90.
 Lena Salamyeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016), 16.
 Modarressi, Text and Interpretation, 247.
 Ibid., 255.
 It is important to distinguish between the Prophetic Sunnaâ€™s exclusive authority and its supremacy. The former provides that, besides God, only the Prophetâ€™s Sunna furnishes binding norms. Its supremacy, on the other hand, means that the Prophetâ€™s Sunna trumps other non-Prophetic sunnas, though the latter retain a derivative authority in the absence of any conflicting Qurâ€™Änic or Sunnaic norm.
 See Muwaffaq al-DÄ«n Ibn QudÄma, al-Mughni, 10 vols. (Cairo: Maktabat al-Qahira, 1968), 7:179.
 Notable Companions included, among others, JÄbir, Ê¿Abd AllÄh Ibn MasÊ¿Å«d, and AsmÄâ€™ bt. AbÄ« Bakr. ZurqÄnÄ«, Shará¸¥, 3:233.
 Modarressi, Text and Interpretation, 254.
 Jonathan A.C. Brown, â€œThe Rules of Matn Criticism: There Are No Rules,â€ Islamic Law and Society 19 (2012): 356-96, esp. 362.
 Modarressi, Text and Interpretation, 256.
 Gribetz, Strange Bedfellows, 112. The MÄlikÄ« jurist AbÅ« Bakr b. al-Ê¿ArabÄ« reports that, according to the popular opinion of his school (mashhÅ«r al-madhhab), sexual intercourse in a mutÊ¿a union is considered fornication and is punished by stoning. But according to another narration attributed to MÄlik, there is no such penalty because mutÊ¿a is â€œnot prohibitedâ€ (laysa bi-á¸¥arÄm). Al-Qabas fÄ« shará¸¥ Muwaá¹á¹aâ€™ MÄlik b. Anas, ed. Muá¸¥ammad Ê¿Abd Allah Wild KarÄ«m, 3 vols. (Beirut: Dar al-Gharb al-Islami, 1992), 2:714.
 â€œI prefer that he avoids it,â€ were his reported words, which his student Ibn Maná¹£Å«r understood as meaning reprehensible, but not unlawful. Modarressi, Text and Interpretation, 248 (quoting Ibn QudÄma, MughnÄ«).
 Modarressi, Text and Interpretation, 259. Regardless of oneâ€™s views on sex work, prostitution was considered an immoral offense in Islamic law and ethics. This is important context to the issue.
 Modarressi, Text and Interpretation, 259-60.
 Gribetz, Strange Bedfellows, 41-42.
 Modarressi, Text and Interpretation, 260.
 Ibid., 263.
 See Khaled Abou El Fadl, Speaking in Godâ€™s Name: Islamic Law, Authority and Women (Oxford: Oneworld Publications, 2001), 179.
 Modarressi, Text and Interpretation, 264.
(Suggested Bluebook citation: Rami Koujah, Uncommon Common Sense: What We May Never Know About MutÊ¿a Marriage, Islamic Law Blog (Aug. 24, 2022), https://islamiclaw.blog/2022/08/24/uncommon-common-sense-what-we-may-never-know-about-mut%ca%bfa-marriage/)
(Suggested Chicago citation: Rami Koujah, “Uncommon Common Sense: What We May Never Know About MutÊ¿a Marriage,” Islamic Law Blog, August 24, 2022, https://islamiclaw.blog/2022/08/24/uncommon-common-sense-what-we-may-never-know-about-mut%ca%bfa-marriage/)