The Status of Women in Jewish and Islamic Marriage and Divorce Law
![handle is hein.journals/hwlj5 and id is 23 raw text is: THE STATUS OF WOMEN IN JEWISH AND
ISLAMIC MARRIAGE AND DIVORCE LAW
JuDiTH RomNEY WEGNER*
I. INTRODUCTION
This Article compares the status of women in Jewish and Islamic
marriage and divorce law. Classical Jewish and Islamic law1
relegated women to a second-class status which, though more than
mere chattel, was demonstrably less than full personhood.2
Though women's status remains inferior to that of men under tradi-
tional Jewish and Islamic law as practiced today, that status has im-
proved over the course of time. This Article will trace women's
progress from a status of near-chattel to one of near-person.
*Visiting Scholar, Harvard Law School. The author gratefully acknowledges the support
of the Lucius N. Littauer Foundation for the research on which this Article is based.
'In this study, classical Jewish law denotes Jewish law as found in the Torah, the Mishnah,
and the Gemara. See infra notes 10, 13. The terms Jewish law, traditional Jewish law,
and halakhah denote traditional Jewish law as observed today (with minor variations) by
Orthodox Ashkenazi and Sephardi Jews throughout the world.
Departures from the halakhah by progressive Judaism, whether Conservative or Reform,
are not called Jewish law even by those adopting them, but are recognized as accommoda-
tions to changed social circumstances. It is important to note that in the sphere of marriage
and divorce law, Conservative Judaism, as opposed to Reform Judaism, largely adheres to
the halaklhah, especially on procedures for conversion and on the question of eligibility to
be married according to Jewish law.
Classical Islamic law herein denotes the shar-a, Islamic law as found in the Qur'an and
in Muslim hadith (religious tradition) and fiqh (juristic literature) which developed during
the seventh through tenth centuries. Islamic law or traditional Islamic law means Islamic
law as practiced today (with minor variations) by adherents of the four surviving orthodox
schools (Hanafi, Malikf, Shilf~r, and .Ianbalt) or by the heterodox Shtcite sect, which survives
today mainly in Iran and part of Iraq.
It should be noted that Judaism and Islam recognize no substantial dichotomy between
religion and law. (it is no accident that the word din means religion in Arabic and
law in Hebrew.) Consequently, the terms Jewish law (halakhah) or Islamic law
(sharia) refer respectively to all the rules in these two systems, both those concerned with
religious matters and those concerned with legal matters, as the words religious and
legal are used in the secular West. Laws passed by civil legislatures in Israel or in Muslim
countries are not Jewish or Islamic law as such, though they frequently incorporate rules
of Jewish or Islamic law.
21n both Judaism and Islam, women, slaves, and aliens (i.e., non-Jewish and non-Muslim
persons) are the three principal categories of what we would call second-class citizens. See
J. SCHACHT, AN INTRODUCTION TO ISLAMIC LAW 124-33 (1964). Compare the well-known
statement of St. Paul that in Christ Jesus [tihere is neither Jew nor Greek [Greek was the
standard Jewish term for gentile in Paul's time], there is neither slave nor free, there is neither
male nor female.... Galatians 3:28. (Unless otherwise indicated, all quotations from the](ViewImageLocal?handle=hein.journals/hwlj5&div=7&collection=journals&method=preview&ext=.png&size=3)
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The Status of Women in Jewish and Islamic Marriage and Divorce Law
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