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26 Am. J. Comp. L. 213 (1977-1978)
Marriage in Islamic Law: The Modernist Viewpoints

handle is hein.journals/amcomp26 and id is 225 raw text is: MARRIAGE IN ISLAMIC LAW: THE MODERNIST VIEWPOINTS by Majid Khadduri Marriage under classical Islamic law has been adequately dis- cussed by a number of writers, but little has been written on the modernist viewpoints. To Westerners-businessmen in particular- perhaps a discussion of business law would be more useful than one on marriage law. However, besides the fact that modern business codes in most Islamic lands have been patterned after Western law, a discussion of the law of marriage-indeed, of the entire law of personal status-is more useful for giving non-Muslims a deeper understanding of Muslim society. To students of comparative law, family law should be of even greater interest, because the family has been central to the development of the law in Islamic lands. A study of Islamic family law illustrates the development of the legal system in early Islam and illustrates the complexity of social problems in modern Islamic nations. Under pre-Islamic law, there were no limitations on men's rights to marry or obtain a divorce. Although the new law under Islam-the Shari'a-reformed marital practices, it did not abolish polygamy or prohibit divorce as did the canon law in early Christian society. Under the pre-Islamic law of status, the patria potestas, women had virtually no rights. The Shari a accorded women a number of rights, and thus changed marriage from an institution characterized by unquestioned male superiority to one in which the woman was some- what of an interested partner. For example, the dowry, previously regarded as a bride-price paid to the father, became a nuptial gift retained by the wife as part of her personal property. The Shari a also changed the nature of marriage from status to contract, in the words of Sir Henry Maine. An offer of marriage by the man, an acceptance by the woman, and the performance of such conditions as the payment of dowry are all essential elements of the marriage contract. Although an offer to marry is actually made through a woman's father, the woman's consent is considered imperative if the contract is to be binding. Additionally, the offer and acceptance must be made in the presence of at least two witnesses for the marriage contract to be valid. Even though marriage in Islam is often considered a religious func- tion, the Shari 'a does not prescribe any particular form of marriage ceremony. The required marriage contract, whether oral or written in MAJID KHADDURI is University Distinguished Research Professor, Johns Hop- kins University.

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