A. Legal Background

The ban on polygamy is one of the salient features distinguishing the Druzes from the Muslims, whose religious law permits this form of marriage with certain well-known limitations. The ban is attributed to the Fatimid Mu'izz li-Din Allah, grandfather of the Caliph Al-Hakim bi-Amr Allah, in whose days the Druze religion came into existence, Al-Mu'izz based the ban on a “modernist” interpretation of the polygamy verses of the Qur'an (4:3,129), which make permission conditional upon equal and just treatment of all the wives; since a man cannot practice absolute justice ('adl mutlaq), at any rate in emotional matters, towards all his wives-absolute justice to all creatures is one of the qualities (sifal) reserved to Allah -and because of the social, economic and physical damage involved, al- Mu'izz enjoined contenting oneself with one wife and thereby anticipated by a thousand years the modernists of the school of Muhammad, Abduh. [1] It thus seems that the ban on polygamy was transmitted to the Druzes from the Isma'iliyya along with the dogmatic-theological inspiration; [2] Da'a'im al-Islam and other writings by Al- Qadr al-Nu'man Ibn Muhammad (d .363/974), regarded as "the Abu Hanifa of the Shi'a," reflect the Sunnite doctrine on this question, probably by way of taqiyya. [3]
The religious-legal ban on polygamous marriages does not nullify their substantive validity but subjects the offender to a religious-ethical sanction, reinforced, as we shall see below, by a social sanction. Characteristic in this respect is the invocation of the polygamy verses of the Qur'an, which are based on a toothless ethical sanction, as a matter left to the conscience of the individual.

The Lebanese legislator validated the religious ban and went even further by negating the validity of the polygamous marriage. The Lebanese Law of Personal Status of the Druze Community of 1948, which was adopted by the Spiritual Leadership of the Druze Community in Israel in 1961, [4] provides categorically that polygamy is forbidden (mamnù') and that if a man takes a second wife the second marriage is null and void (hatil) (article 10). The law makes no distinction between void and irregular (fasid) marriages, and it thus seems that the legislator intended that the spouses should be separated immediately, without the termination of the marriage having any legal or monetary effects, such as mutual rights of inheritance between the spouses or the fixing of paternity. [5] Amin Tali' makes it clear that the ban is absolute and cannot be circumvented by devices of ijtihad or interpretation (tafsir). [6]

The Druzes are very proud of their achievements in the matter of polygamy. Thus, e.g., 'Abd Allah al-Najjar notes with satisfaction that the Druzes anticipated modern reformist legislation on polygamy in Arab countries by a thousand years. In fact, reforms in this sensitive area have only been introduced in the last generation. Tunisia is the only Arab country where polygamy has been abolished by express substastantive legislation (in 1964), and this only after some doubt and hesitation. In Syria and Iraq, polygamy has been prohibited but not abolished, [7]

The Knesset (Israeli parliament) prohibited polygamous marriages by criminal legislation imposing the sanction of up to five years' imprisonment but did not invalidate them as far as they were valid according to religious law, Two good defenses were provided to a charge of polygamy: absence of the spouse for a continuous period of seven years under circumstances raising a reasonable presumption of death, and illness rendering the spouse incapable of consenting to the dissolution or annulment of the marringe. [8] This legislation is relevant to the Druses as far as polygamy still exists with them, contrary to the religious prohibition, although, as stated, polygamous marriages are invalid according to the Law of Personal Status of the Druze Community. In Syria and Iraq, too, polygamy is for- bidden by criminal legislation, but the qadis there have much wider discretion to permit polygamous marriages; the guiding considerations are the husband's ability to support more than one wife and to treat his wives impartially, and the usefulness (manfa 'a) of the marriage. [9] The Knesset's legislation supplements the Druze religious-legal norm without impairing its substantive validity; it adds a penal sanction to the toothless religious-ethical sanction.

B. The Ban On Polygamy Put To The Test Of Reality

How does Druze society, mainly still patrilineal and patriarchal, react to the ban on polygamy, adapted to the nuclear family and relying on both religious-ethical and secular-penal sanctions? The wording of the religious-legal ban suggests that it was imposed from above on a society in which polygamy was an accepted norm.

The application of this ban seems to have encountered difficulties in the past: some regarded it as an infliction the community could not endure, and when the gap between the religious-legal norm and social reality became too wide to be bridged, the norm was superseded by custom. According to one tradition, polygamy prevailed among the Druzes resident in Muslim villages of the Levant until the days of Shaykh 'Abd Allah al- Tanukhi (d.885/1480), the greatest of the late Druze commentators, and in order to eradicate this phenomenon he conducted a campaign of religious awakening among those Druzes, succeeding in persuading the wives in polygamous marriages to agree of their own free will to separate from their husbands so as to leave them with only one wife.[10] We probably have to do here with an attempt at idealization, for the motivation for polygamy in a patriarchal society was surely too strong, even without taking into account the influence of Muslim society or considerations of taqiyya , [11] to allow us to suppose that the problem was solved along religious-legal lines in so smooth and simple a manner.

At present, polygamy seems to be very rare among the Druzes. Shaykh Labib Abu Rukn, Qadi of the Druze Religious Court in Haifa, maintains that polygamy does not occur even in serious cases of barrenness and that if the husband wants to have children he will divorce the barren wife and take another wife instead; in fact the wife herself, even if she loves her husband; will urge him to divorce her in order to prevent a violation of the religious-legal ban. Shaykh Muhammad Ali Farhat and Shaykh Nayif Fandi Abu Salih, the Qadis of the Druze Religious Court of the Golan Heights, remember no instance of polygamy on the Heights.[12] 'Afifa Sa'b, a Lebanese fighter for the liberation of women, notes with satisfaction that the Druze woman is free of the threat of polygamy; that her husband cannot infringe her exclusive status by dividing his affections among several wives; that she no longer feels herself to be a concubine or an object of commercial dealings; that she has acquired self-confidence and devotes her energies to her husband, her children and her home; and that the husband, for his part, has learnt to accept and adapt himself to the monogamous form of marriage.[13]

It seems that this idyllic picture, though essentially correct, does not always reflect the day-to-day reality of Druze society in Israel and on the Golan Heights. There is evidence, though not much, in the sijills (registers of court decisions) of polygamy and of the fear of it as the portion of Druze women. In several cases, a woman stated in court, at the hearing of some claim or other, that her husband had deserted her and married (tazawwaj) another woman, in a manner contrary to shar'i or secular law, and had gone to live with her in another locality. In one of these cases, the woman in question was a Jew. Although we cannot say with certainty that these are cases of polygamy, this possibility is heightened by several indications in the decisions. Thus, e.g., in one case, the court directed referring the complaint to the police for it to investigate whether an offence against the law prohibiting bigamy had been committed.[14]

In another case, although the court of first instance and the court of appeal categorically declared that the second marriage had been concluded in contravention of the law prohibiting bigamy, they seem to have had in mind a purely technical offence. The mukhtar of the village (on the Golan Heights) explained that the man had married a second wife before giving his divorced first wife what was due to her and before the talaq had been confirmed by the (religious) court. The man, for his part, stated that he had taken the second wife "in order that she might live with him in mut'a," a marriage of enjoyment for a limited period, and might bring up his children. The witnesses for the wife confirmed that the man had married (tazawwaj) a second wife and that she in his house, but they could not say with certainty whether this marriage (zawaj) was legal (qanùnt) or not. [15] Mut'a marriages, recognized by the Ithna' Ashrr Shr'a, have a foothold among the Sunnites as well, and this perhaps explains why the Ottoman legislator took the trouble to convert mutt’a and temporary marriages from invalid (batil) into irregular (fasid) ones, which, if consummated, are not very different in their legal effect from valid (sahih) marital unions. The presence of an 'Alawi population on the Golan Heights may have been instrumental in this Institution being adopted by the Druzes either by assimilation or by way of taqiyaa .[16] In a further case, the husband's father confirmed that his son lived with another woman in a certain place, although it is not expressly stated that he had married her.[17] Sheikh Lablab Aba Rukn says that the religious-legal ban on polygamy has become general and is only infringed under compelling circumstances (bi-'amil idtirari) which he does not specify, and all the cases concerned involve the marriage of a non-Druze woman in addition to the lawful Druze wife.[18]

But in many other cases, the wife's allegation that her husband had married another woman was a mere suspicion based on hearsay, although even this was sufficient for her to be concerned about her status. It seems that what was really involved was extra-marital sexual relations or the keeping of a second woman as a reputed wife, with all that this implies, while disregarding the legal wife, with holding her maintenance, and the like. Things are usually done in secret, especially if the other woman is a non-Druze, but sometimes the man brings her to his house and expels his legal wife from it, to whom he may have been married for decades and who may have borne him many children. Under such circumstances, the legal wife sometimes demands that her husband divorce her.[19]

These cases attest that the motivation for polygamy still exists in the Druze community in spite of the religious-legal ban. Disregard of this ban is an offence entailing a religious-ethical sanction and social ostracism.[20] Extra-marital intercourse is regarded as a deviation from traditional modest ways and as adultery (zina), which, in turn, is a ground for judicial dissolution also on the initiative of the wife. [21] But it seems that even the penal sanction of the Knesset does not act as a deterrent. No instance is known of a Druze being brought to trial for infringing the ban on polygamy.[22]

It seems paradoxically, that the influence of Israeli society, which strives to improve the status of women and to equalize their rights with those of men and which for this purpose has forbidden polygamy, has perhaps harmed more than helped Druze women in this sphere. The acquisition of a modem, rational outlook through a secular education, military service and commuting of manpower to urban centers have significantly weakened among the Druzes the deterrent effect of the religious-ethical sanction applicable to polygamous marriages. The Knesset has provided a legal and normative legitimation for keeping a second woman without marriage. The statutorily recognized position of the reputed wife is a modem structural solution for polygamous inclinations and may in several respects be more convenient than the traditional structural solution of "successive polygamy," which requires divorcing the older woman in order to marry a younger one; [23] it has some of the advantages of polygamy without several of its disadvantages.[24] Lastly, physical severance from traditional society by moving to town makes it possible for a man to realize his wishes as to polygamy or an extramarital relationship with comparative ease, since he is far beyond the reach of the religious and social sanctions that threaten him in his home village. Ostracism and excommunication have no meaning under these circumstances.

C. The Qadis And Polygamy

The qadis' approach to polygamy is ambivalent: both religious and secular. They chiefly refer to it in the context of religious law and of custom. They stress the religious character of the ban on polygamy: he who transgresses it impinges on the sanctity of marriage on tradition and custom (taqalid, 'adat) and the principles of the Druze religion.[25] Shaykh Labib Aba Rukn bases the case for monogamous marriage not only on religious arguments but also on the natural equality of the sexes: Allah created a pair of everything; moreover, he says, this form of marriage is socially beneficial: the participation of two wives in one marriage causes jealousy (hasad) and rivalry (tanafus) between the two and a lack of justice and equality ('adl, insaf) in the husband's treatment of them.[26] But this attitude of the qadis does not mean that a polygamous marriage is invalid.

The religious injunction is not substantive; the offender is liable to a religious sanction or, as Shaykh Kamal Mu'adr puts it, "religion will punish him" (al- din yu 'aqqibuhu). Moreover, the just treatment of the wives in emotional matters is not left solely to the conscience of the individual, as between him and his Maker, Iike polygamy in Islam according to orthodox interpretation; with the Druzes, the offender is subject also to a socia1 sanction: he is liable to be reprimanded (mulam) by religious functionaries and expelled by the community. [27] Shaykh Labib Abu Rukn adds that this sanction applies also to the wife in a polygamous marriage. If the offender is a religious functionary, he excludes himself from the ranks of religious functionaries with all that this implies, e.g., that it is forbidden to participate in prayers held by him.[28] But again, the religious offence does not affect the substantive validity of the polygamous marriage, any more than an ethical offence affects the validity of the prohibited act in question in orthodox Islam.

At the same time, the qadis also refer to the ban on polygamy in the context of secular-Lebanese or Israeli-legislation. Shaykh Labib Abu Rukn decided in one case that a husband must return to his home and legal wife and must not take another wife before having divorced the first, seeing that polygamy was forbidden and that if he infringed this prohibition his second marriage would be null and void by virtue of article 10 of the Law of Personal Status of the Druze Community, that is to say, the parties would have to separate immediately without any legal or financial effect resulting between them. Shaykh Labib is very proud of that article; he thinks that the ban on polygamy is in accordance with the requirements of the present time and the prevailing tendency towards the monogamous form of marriage; "Time has indeed shown the justice of the principle of the ban on polygamy."[29] Shaykh Kamal Mu'adt does not distinguish between invalid and irregular marriages,[30] any more than the Lebanese legislator did in the Law of Personal Status of the Druze Community.

The Qadis are alive also to the criminal legislation of the Knesset in the matter of polygamy. In one case, where a man had taken a second wife after divorcing the first by talaq but before the (religious) court had confirmed the divorce, as the Druze Personal Status Law-but not Druze religious law-requires for its validity, Shaykh Labib Abu Rukn and Shaykh Nür al- Din Halabi decided that the man had infringed Israeli legislation prohibiting polygamy. The Druze Court of Appeal reaffirmed that the second marriage had been concluded "in contravention of the civil law," but declared that it was not called upon to deal with the criminal aspect of the offence (which indeed it was not) and concentrated on the religious-legal one.[31] In another case, in which a suspicion of a contravention of the ban on polygamy arose, Shaykh Nür al-Din directed referring the matter to the police. He con- firmed an interview that he was alive to the criminal aspect and accustomed to draw the attention of the police to offences he came across in the course of his work. He added that a polygamous marriage should be dissolved at once since it was not valid. This conforms with the spirit of Druze religious law and the Lebanese law and goes beyond the expectations of the Israeli legislator. [32]

In sum, the approach of the Druze qadis to the question of polygamy reflects an ongoing, probably unconscious synthesis of the religious and secular norm by the religious judicial authority. Both norms seek to achieve the same purpose, the preventing of polygamy, though from different motives and by different means. The religious norm relies on a celestial- ethical sanction and the secular norm on a temporal- legal sanction. One has the impression that the qadis wish to use the Lebanese substantive reform and the Israeli penal legislation in order to support and strengthen the religious norm. This being so, one does not observe among the Druze qadis the same perplexity as among their Muslim colleagues, who are required to decide between the religious-legal permission of polygamy supported by social custom, and the prohibition of polygamy by the pena1 legislation of a non-Muslim parliament.[33]

Footnotes

Footnotes

[1]. See 'Abd Allah al-Najjar, Madhhab al-Dun1z wa'l- Tawhid, Cairo, 1965, pp. 153, 154 and 156; Amin Muhammad Tai, Asl al-Muwahhidin al-Duraz wa- Usuluhum. Beirut, 1961, pp. 130 and 153; idem., "Nash 'at Al-Duruz , “Al-Waqi” al-Durzi wa-Hatmiyyat al-Tatawwur, Majmu’at Muhadart, Manshurat Rabitat al-Amal al-Ijtimat, Beirut, 1962, pp.60-1; Salim Hariz, ‘Al-Shar al’Durzi Al-Waqi al-Durzi wa Hatmiyyat al-Tatawwur, ibid., p.79; and the religious-legal sources indicated in the aforesaid publications; Kamal Mu’adr, “Al-Mar’a al-Durziyya, Huququha, Wajibatuha, Zawajuha, Talaquha,”Majallat al-Akhar al-Durziyaa, vol. VI (1973), p.18; K.Chatilla, Le marriage les mulsulmans en Syrie, Paris, 1934, p.250. For orthodox and modernist Muslim interpretations of the polygamy verses of the Qu’ran see A, Layish, Women and Islamic Law in a Non-Muslim State, Jerusalem, 1975, p.72, and the sources indicated in n.2.

[2]. See D. Bryer “The Origins of the Druze Religion,” Der Islam, vo.52 (1975), pp.49-51, 240 and 247; vol. 53 (1976), ch.4, pp. 5-27; M.G.S. Hodgson, art. “Duruz” E. I, p.631. It may be significant in this context that polygamy has been recently abolished in the Ismaili Shia in East Africa. See Doreen Hinchcliffe, “Polygamy in Traditional and Contemporary Islamis Law,” Islam and the Modern Age, vol. 1(1970), n.3, pp.19, 27 and 28. Hitti’s suggestion that the ban on polygamy among the Druzes is due to Christian influence in the Levant is unfounded, See P. Hitti, The Origins of The Druze People and Religion, reprinted, New York, 1966, p.54.

[3]. See A.A. A. Fyzee, Compedium of Fatimid Law, Simla, 1969, pp.35-37; A. Layish, “Ma’amad ha-Islam ba-Mishpaha ha-Druzit be-Yisra’el” (The Status of Islam in the Druze Family in Israel), Ha-Mizrah he-Hadash vol. 26(1976), pp.152ff. and the sources indicated there.

[4]. See A,Layish, “Ha-Shiput ha-Adati shel ha-Druzum b-Yisra’el (Communal Jurisdiction of the Druzes in Israel), Ha-Mizrah he-Hadash Vol. II (1961), pp. 261 and 262; idem., “He’arot le-Hoq Batay he-Din ha-Datiyim ha-Druziyim, 5722-1963, “ (Notes on the Druze Religious Courts Law, 5722-1963), ibid., vol. 15 (1965) pp.97-103.

[5]. J.N.D. Anderson, “The Personal Law of the Druze Community, “ Die Wely des Islam, N.S. II (1952), pp.4 and 6.

[6]. See Tali, Asl al-Muwahhidin, p.130.

[7]. See Al-Najjar, p.156; Hinchcliffe, Polygamy, pp. 19 seq.

[8]. For more detail see Layish, Women and Islamic Law, pp.72-74, and the sources indicated there.

[9]. See Y. Linant de Bellefonds, Traite de droit musulman compare, vol.2, Paris & La Haye, 1965, pp.137 and 138; Hinchcliffe, Polygamy, pp.19 seq ; N.J. Coulson, A History of Islamic Law, Edinburgh, 1964, pp.208-213 ; idem. Conflicts and Tensions in Islamic Jurisprudence, Chicago, 1969, p.93; J.N.D, Anderson, Islamic Law in the Modern World, London, 1959, pp. 48-50; idem. “The Syrian Law of Personal Status,” Bulletin of the School of Oriental and African Studies, vol. 17 (1955), pp.36-38; idem., “A Law of Personal Status for Iraq,” International and Comparative Law Quarterly. Vol.9 (1960). Pp549 and 550; idem., “Changes in the Law of Personal Status in Iraq,” ibid., vol. 12 (1963), pp. 1027 and 1028.

[10]. Interview with Shaykh Labib Abu Rukn of March 5, 1974.

[11]. See Layish, Islam in the Druze Family, and the sources indicated there.

[12]. Lecture by Shaykh Labib Abu Rukn to students at Tel Aviv University, on May 18, 1975; interview with Shaykh Muhammad' Ali Farhat and Shaykh Nayif Fandi Abu Salih on October 7, 1974; cf: Chatila, p, 250 and the source indicated there.

[13]. See 'Afifa Sa'b, "Al-Mar'a al-Durziyya," Al-Waqi' al-Durzi wa-Hatmiyyat al-Tatawwur, Beirut, 1962, p. 117. See also N, Bouron, Les Druzes, histoire du Liban et de la Montagne haouranaise, Paris, 1930, p. 306.

[14]. See Court of Haifa, Talaq, File 104/73.

[15]. See Haïfa, Talaq, File 4/72 and Appeals, Talaq, File 2/72 (the court found that the second marriage had been performed in writing as customary by a local religious functionary): HCJ 409/72.

[16]. See A. A. A. Fyzee, Outlines of Muhammadan Law, 3rd ed., London, 1964, pp, 112-115: J.Schacht, An Introduction to Islamic Law, Oxford, 1964, p. 163; Muhammad Qadri Pasha, Kitab al-Ahkam al-Shar'iyya fi al-Ahwal al-Shakhsiyya 'ala Madhhab al-Imam Abi Hanifa al-Nu'man, in Rusbdi al-Sarraj (ed.), Kitab Mujmu'at al-Qawanin al-Shar'iyya, Jaffa, 1944, arts. 13 and 14; Ottoman Family Rights Law, arts. 55,69 and 75- 77; Hinchcliffe, Polygamy, pp, 22 and 26. For more detail see A. Layish, Marriage, Divorce and Succession in the Druze Family (in preparation for publication), the chapter on mut'a marriages and temporary marriages.

[17]. See Haifa, Nafaqa, File 33/75

[18]. Lecture by Shaykh Labib Abu Rukn to students at Tel Aviv University on May 18, 1975, and interview with him on March 5,1974.

[19]. See Haifa, Talaq, File 50/69; Haifa, Nafaqa, File 106/72 (Druze lives at Arad with non-Druze woman), File 140/72, File 125/73 (Druze moves with his family to Tel- Aviv); Majallat al-Akhbar al-Durziyya, vol. VI (1973), pp. 48-50,

[20]. Interview with Shaykh Labib Abu Rukn on March 5, 1974,

[21]. Law of Personal Status of the Druze Community, art, 41.

[22]. Cf Layish, Women and Islamic Law, pp, 74-77.

[23]. Barrenness of the wife and the desire for a young woman are still very frequent causes of successive polygamy. See A. Layish, Marriage. Divorce and Succession ,the chapter on divorce. Cf. idem., Women and Islamic Law, pp. 126. 127. 146, 180,219 and 329.

[24]. See ibid.. pp. 76 and 89 and the sources indicated there.

[25]. See: Appeals,Talaq, File 2/72.

[26]. Lecture by Shaykh Labib Abu Rukn at Bayt Hillel, Jerusalem, on May 31,1976.

[27]. Interview with Shaykh Kamal Mu'adi on March 5, 1974.

[28]. Interview with Shaykh Labib Abu Rukn on March 5, 1974, and September 11,1974.

[29]. See Haïfa. Nafaqa, File 106/72; lecture: by Shaykh Labib Abu Rukn to students at Tel Aviv University on May 18, 1975.

[30]. Interview with Shaykh Kamal Mu'adi on March 5, 1974.

[31]. See Haifa. Talaq, File 4/72 and Appeals, Talaq. File 2/72.

[32]. See Haifa. Talaq. File 104/73; interview with Shaykh Nur al-Din Halabi on March 25,1975.

[33]. Cf. Layish. Women and Islamic Law. pp. 80 seq.. 335 and 336.