Uncommon Common Sense: What We May Never Know About Mutʿa Marriage

By Rami Koujah

This post is part of a series of posts on the latest publication in our Harvard Series in Islamic Law, Hossein Modarressi’s Text and Interpretation: Imam Jaʿfar al-Ṣādiq 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 Imām Jaʿfar al-Ṣādiq, 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 ḥadīth forgery, I noted the importance of reading the sources with breadth, depth, and common sense. Professor Hossein Modarressi’s discussion of mutʿa 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, “The case of mutʿa … offers a spectacular example of how ḥadīth developed as an effective tool in early sectarian debates of the late Umayyad and early Abbasid period to defend orthodoxy.”^[1]

A simple definition of mutʿa marriage, a time-limited union, is as follows: “Mutʿa marriage means that a woman is married for a [limited] period. For example, a man may say, ‘I wed you to my daughter for one month, or one year, or until the end of the [ḥajj] season, or until the arrival of the ḥajj pilgrims,’ or the like, whether the duration is known or unknown.”^[2] The legality of this institution is hotly contested along sectarian lines, with Shīʿī jurists permitting it and Sunnī jurists, for the most part, forbidding it. So polarizing was the subject that some Sunnī jurists regarded its prohibition as backed by nothing less than unanimous consensus (ijmāʿ),^[3] while in another report, clearly fabricated for reasons explained below, Jaʿfar declares belief in the permissibility of mutʿa as an article of faith.^[4]

Two things are nearly certain, and all Muslim jurists agree on both—whether Sunnī or Shīʿī. First, mutʿa was permitted by the Prophet and practiced during his lifetime. Second, the second caliph, ʿUmar b. al-Khaṭṭāb, decreed its impermissibility in no uncertain terms. The question of disagreement revolves around whether ʿUmar’s declaration was a restatement to an ignorant public of the fact that mutʿa’s permissibility had been abrogated sometime before the Prophet’s death or whether ʿUmar himself changed the law, and whether he had the authority to do so. The Shīʿa unanimously condemn ʿUmar for his executive overreach,^[5] while the Sunnī schools of law of the post-formative era argue that mutʿa’s prohibition was established on the authority of both the Qur’ān and ḥadīth, but mostly the latter.^[6]

The problem, as noted by Muslim and non-Muslim scholars, is that the ḥadīths that speak to the legality of mutʿa are wildly contradictory. Ḥadīths regarding the year in which the Prophet purportedly abrogated the permissibility of mutʿa varied so widely that some Sunnīs resorted to tortured attempts at reconciling them. Mutʿa was abrogated twice, one argued, and seven times according to another.^[7]

Moreover, ʿAlī b. Abī Ṭālib (the fourth Rightly Guided Caliph, and the first Imām of the Shīʿa) and Ibn ʿAbbās (a cousin of the Prophet and ʿAlī) each have various reports attributed to them, some of which permit mutʿa and others of which deem it abrogated.^[8] The character of some of these reports is telling. Both ʿAlī and Ibn ʿAbbās are represented as having criticized ʿUmar for his ban against mutʿa.^[9] Yet in one report, Ibn ʿAbbās, though well known by both Sunnīs and Shīʿīs to have considered mutʿa to be lawful, is berated by ʿAlī for his ignorance regarding its abrogation.^[10] Conveniently for Sunnīs, and drawing on the topos of antemortem penitence, Ibn ʿAbbās is also reported to have repented on his deathbed for his opinion on mutʿa’s lawfulness.^[11]

Reports of other authorities are just as confused. Jaʿfar al-Ṣādiq is sometimes represented as an active campaigner for mutʿa, and at other times as someone who discourages it.^[12] Even the opinion of ʿUmar himself could be confused.^[13]

As discussed in an earlier post, all of these early figures were key targets of ḥadīth forgers who aimed to create authoritative bases for disputed issues of law in early Islamic societies.  Ḥadīth forgers exploited these figures’ 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 — the ḥadīths are “impossible to reconcile and none can be verified,” wrote the Andalusian Mālikī jurist Ibn al-Muzayyin^[14] — it took well over a century for the Sunnīs to even agree on whether the Prophet or ʿUmar was the source of the prohibition.^[15]

How, then, to navigate the ḥadīth forgery fray? The methods of traditional isnād criticism, the common link approach, or isnād-cum-matn analysis are far from conclusive, especially on a matter as politically and theologically charged as this one.^[16] Such formalistic methods also commit the fallacy of historical positivism, or the “notion that particular methodologies generate Truth.”^[17] My previous post remarked on a “thick description” approach, of which Professor Modarressi’s discussion of mutʿa is an example with respect to Jaʿfar al-Ṣādiq’s view, as he explicitly disclaims an interest in a comprehensive analysis of the reports.^[18] An abridgment of Professor Modarressi’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 Modarressi’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 Modarressi’s discussion illustrate the point.

The context (or at least some of it): mutʿa 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; ḥadīth 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);^[19] and the exclusive authoritativeness of the Prophetic Sunna developed well after ʿUmar’s death.^[20] Sunnīs, therefore, had a clear incentive to backdate the prohibition of mutʿa to the lifetime of the Prophet and represent a consensus among early authorities common to both Sunnīs and Shīʿīs. That is why some interpreted ʿUmar’s promulgation as an act of relaying the Prophetic legislation to an ignorant public: ʿUmar lacked the authority to prohibit what the Prophet considered permissible.^[21]

In the first/seventh century, Ibn ʿAbbās and fellow scholar-jurists of Mecca, as well as other prominent Companions and Successors — who were all recognized as authorities by later Sunnī scholars — held the view that mutʿa was permissible.^[22] How is it then, Professor Modarressi questions, that the Meccan jurists and students of Ibn ʿAbbās had never heard of mutʿa being abrogated during the Prophet’s lifetime considering that this is an issue that would have been widely reported?^[23] That seems contrary to common sense. Consider also a further implication: The Qur’ān sets strict limits on sexual morality — “do not even go near adultery (zinā), for it is surely an indecency and evil way” (Q 13:32). Could then the flipped legal status of a sexual relationship contracted by mutʿa, which would have made it zinā, have gone unnoticed by so many?

The anti-mutʿa party was keen to undercut their opponents by forging reports that represented Ibn ʿAbbās as deeming mutʿa forbidden. But by standards of common sense recognized by Sunnī ḥadīth scholars themselves, limited narrations on a topic that should and would have been widely known are clear forgeries.^[24] 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 —ʿAlī and Ibn ʿAbbās in particular — who were commonly believed to have objected to the caliph’s decision in this case, seems to be a clear attempt to rebuff the caliph’s opponents in this matter, and makes one extremely suspicious about the provenance of these reports.^[25]

One wonders whether the views of later Sunnī jurists, specifically Mālik b. Anas and Aḥmad b. Ḥanbal, were likewise met with tampering. Ḥanafī sources often represent Mālik as condoning mutʿa,^[26] and according to the Ḥanbalīs, Aḥmad b. Ḥanbal—on one narration—considered the practice lawful but disliked.^[27]

Notice, also, that the dispute is only on whether, when, and by whom the permissibility of mutʿa was repealed. If the Prophet had considered mutʿa 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 mutʿa was permitted only due to the necessity of exceptional circumstances — namely, in the context of war in which amorous soldiers left their wives behind — Sunnīs were implicitly suggesting that mutʿa 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.^[28] It would certainly contradict the entire ethical thrust of the Qur’ān and the Prophet’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 Qurʾānic permission to eat carrion (Q 2:173) to avoid starving does not work. On the principle of proportionality — implicit in the verse’s limitation that necessity is a license so long as one is “neither coveting nor transgressing” — masturbation seems a far less drastic solution. The case of carrion also does not involve the “third party harms” that prostitution does.^[29] 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 ḥajj season in Mecca.^[30] Surely the Prophet would have considered that. Moreover, if the point of a mutʿa 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 mutʿa in situations that would have made it extremely difficult to care for a child?

For Professor Modarressi, the notion that the Prophet approved of mutʿa, which had been a pre-Islamic practice, sheds considerable light on the character of the institution:

If it was ever allowed by the Prophet, mutʿa 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 Qurʾān [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.^[31]

It was banned during the time of ʿUmar, 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 mutʿa. He states that such practices “would 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.”^[32] That explains the reason for which Jaʿfar al-Ṣādiq described such arrangements as unlawful sex, or fornication (zinā).^[33]

What Jaʿfar was condemning is the abuse of the law, or what some term legal loopholes (ḥiyal). Of course, laws can always be manipulated towards desired ends. For example, the misyār marriage, a practice condoned by modern Wahhābī 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.^[34] This seems to be the reason behind ʿUmar’s ban and Jaʿfar’s criticisms of mutʿa as a practice in his time reserved for the “licentious.”^[35] Ultimately, as discussed in the previous post, we may not know what mutʿa 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.

Notes:

^[1] Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Cambridge: Harvard University Press, 2022), 255-56.

^[2] Ibid., 248 (quoting Ibn Qudāma, Mughnī).

^[3] Al-Zurqānī claims that differences of opinion existed up until the end of ʿUmar’s caliphate, after which a consensus emerged regarding its prohibition. Muḥammad b. ʿAbd al-Bāqī al-Zurqānī, Sharḥ al-Zurqānī ʿalā Muwaṭṭa’ al-Imām Mālik, ed. Ṭāhā ʿAbd al-Ra’ūf Saʿd, 4 vols. (Cairo: Maktabat al-Thaqāfa al-Dīniyya, 2003), 3:233; Arthur Gribetz, Strange Bedfellows: Mut‘at al-nisā’ and Mut‘at al-ḥajj: A Study Based on Sunnī and Shī‘ī Sources of Tafsīr, Ḥadīth, and Fiqh (Berlin: Klaus Schwarz Verlag, 1994), 160, 162.

^[4]  Gribetz, Strange Bedfellows, 55. Regarding another sectarian debate, Sunnīs deemed belief in the permissibility of wiping over one’s boots in satisfaction of ablution to be an article of faith, while Shīʿīs and Ibāḍīs likewise regarded the belief in its impermissibility. Similar views were held regarding the recitation of the opening formula of the Qur’ān in prayer. Hossein Modarressi, “Common Ibāḍī/Shīʿite Legacy: Examples from the Ritual Law,” in Ibadi Jurisprudence: Origins, Developments, and Cases, eds. by Barbara Michalak-Pikulska and Reinhard Eisener (Hildesheim; Zürich; New York: Georg Olms Verlag, 2015), 111-19, esp. 111-13.

^[5] Gribetz, Strange Bedfellows, 56.

^[6] According to the Mālikīs, the prohibition of mutʿa is based on the Sunna and not the Qur’ān. Zurqānī, Sharḥ, 3:234-35.

^[7] Modarressi, Text and Interpretation, 251, 251 n. 50.

^[8] Gribetz, Strange Bedfellows, 19-21 (contradictory reports on Ibn ʿAbbās), 161-62 (contradictory opinions attributed to ʿAlī).

^[9] Modarressi, Text and Interpretation, 256; Gribetz, Strange Bedfellows, 58.

^[10] Gribetz, Strange Bedfellows, 20.

^[11] Sunnīs disagreed on whether he recanted his view. Zurqānī, Sharḥ, 3:234-35; Gribetz, Strange Bedfellows, 20, 20 n. 61.

^[12] Gribetz, Strange Bedfellows, 78-79, 82.

^[13] Modarressi, Text and Interpretation, 254 (quoting Ibn Ḥazm, Muḥallā, that some said ʿUmar permitted it on the condition of having two upright witnesses).

^[14] Ibid., 252 (quoting Ibn al-Muzayyin, Mufhim).

^[15] See ibid., 252-54.

^[16] As already made clear in the case of traditional isnād criticism. Based on his common link approach, Joseph Schacht concluded that the prohibition of mutʿa originated around the time of al-Zuhrī (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, “Mut’a Marriage Reconsidered in the Context of the Formal Procedures for Islamic Marriage,” Journal of Semitic Studies 20 (1975): 82-92, esp. 89-90.

^[17] Lena Salamyeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016), 16.

^[18] Modarressi, Text and Interpretation, 247.

^[19] Ibid., 255.

^[20] It is important to distinguish between the Prophetic Sunna’s exclusive authority and its supremacy. The former provides that, besides God, only the Prophet’s Sunna furnishes binding norms. Its supremacy, on the other hand, means that the Prophet’s Sunna trumps other non-Prophetic sunnas, though the latter retain a derivative authority in the absence of any conflicting Qur’ānic or Sunnaic norm.

^[21] See Muwaffaq al-Dīn Ibn Qudāma, al-Mughni, 10 vols. (Cairo: Maktabat al-Qahira, 1968), 7:179.

^[22] Notable Companions included, among others, Jābir, ʿAbd Allāh Ibn Masʿūd, and Asmā’ bt. Abī Bakr. Zurqānī, Sharḥ, 3:233.

^[23] Modarressi, Text and Interpretation, 254.

^[24] Jonathan A.C. Brown, “The Rules of Matn Criticism: There Are No Rules,” Islamic Law and Society 19 (2012): 356-96, esp. 362.

^[25] Modarressi, Text and Interpretation, 256.

^[26] Gribetz, Strange Bedfellows, 112. The Mālikī jurist Abū Bakr b. al-ʿArabī reports that, according to the popular opinion of his school (mashhūr al-madhhab), sexual intercourse in a mutʿa union is considered fornication and is punished by stoning. But according to another narration attributed to Mālik, there is no such penalty because mutʿa is “not prohibited” (laysa bi-ḥarām). Al-Qabas fī sharḥ Muwaṭṭa’ Mālik b. Anas, ed. Muḥammad ʿAbd Allah Wild Karīm, 3 vols. (Beirut: Dar al-Gharb al-Islami, 1992), 2:714.

^[27] “I prefer that he avoids it,” were his reported words, which his student Ibn Manṣūr understood as meaning reprehensible, but not unlawful. Modarressi, Text and Interpretation, 248 (quoting Ibn Qudāma, Mughnī).

^[28] Modarressi, Text and Interpretation, 259. Regardless of one’s views on sex work, prostitution was considered an immoral offense in Islamic law and ethics. This is important context to the issue.

^[29] Modarressi, Text and Interpretation, 259-60.

^[30] Gribetz, Strange Bedfellows, 41-42.

^[31] Modarressi, Text and Interpretation, 260.

^[32] Ibid., 263.

^[33] Ibid.

^[34] See Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford: Oneworld Publications, 2001), 179.

^[35] Modarressi, Text and Interpretation, 264.

(Suggested Bluebook citation: Rami Koujah, Uncommon Common Sense: What We May Never Know About Mutʿa 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/)