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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.


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