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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]


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