Skip to main content Accessibility help
×
Home

TEMPORARY MARRIAGE: A COMPARISON OF THE JEWISH AND ISLAMIC CONCEPTIONS

  • Yehezkel Margalit (a1)

Abstract

The Jewish marriage differs from the Catholic Christian marriage, which is an institution surrounded by the halo of a holy sacrament that cannot be nullified. It also differs from the Islamic marriage, which is closer to a legal agreement than to a sacrament, wherein the husband alone may annul the marriage, either unilaterally or by mutual consent. This is especially true of the Shi'ite marriage—the muta—which may be annulled without any divorce proceedings at a predetermined date. In this article, I present a little-known possible halakhic stipulation: temporary marriage. I consider its roots and the different applications in Talmudic sources. An example of the Babylonian application of this conditional marriage is the cry by important Babylonian amoraim, “Who will be mine for a day?” In this unique case, some of the halakhic authorities rule that there is no necessity for a get in order to terminate the marriage. I consider the early halakhic rulings on these cases and the modern version of this stipulation, which was also rejected by modern halakhic authorities. I also offer a comparative study of a possible parallel to the marriage for a predetermined period, the Shi'ite temporary marriage, which is intentionally restricted to an agreed period of time and does not require divorce to annul it. I conclude my discussion by revealing the possible common roots for the Jewish temporary marriage and the Shi'ite temporary marriage in ancient Persian law.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      TEMPORARY MARRIAGE: A COMPARISON OF THE JEWISH AND ISLAMIC CONCEPTIONS
      Available formats
      ×

      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      TEMPORARY MARRIAGE: A COMPARISON OF THE JEWISH AND ISLAMIC CONCEPTIONS
      Available formats
      ×

      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      TEMPORARY MARRIAGE: A COMPARISON OF THE JEWISH AND ISLAMIC CONCEPTIONS
      Available formats
      ×

Copyright

References

Hide All

1 Mark 10:9. See also Roderick, Phillips, Putting Asunder: A History of Divorce in Western Society 15–30, 34–9 (1988); John Witte, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (1997); Zeev Falk, Nissuin VeGirushin: Tikunim BeDini Mishpaha beYahadut Ashkenaz veTzarfat [Marriage and Divorce: Reforms in the Family Life of German-French Jewry] 11ff, 55ff (1961). A note on translation: Translations from Hebrew are provided by the author. Translations from Arabic were performed with the assistance of Mr. Uri Yamin.

2 Compare the conclusions of the following articles and books in Hebrew: Goitein, Shlomo D. & Ben Shemesh, Aharon, Islamic Law in the State of Israel 218 (1957) (“the marital bond is a civil contract between two parties”); Meron, Yaakov, Moslem Law in Comparative Perspective 177 (2001) (“Marriage in Islam is a contractual agreement.”); Behor, Guy, Between Vision and Reality: Law in the Arab World 270 (2002) (“Under Islamic law, the marriage contract is a commercial contract, which is entered into by an offer and the acceptance of the offer and any disputes are settled under contractual law (majles), i.e., place and time, between the woman's guardian and her future husband.”). This statement is quoted also by the president of the Shari'a appeals court in Israel, his honor the Quadi Sheikh Tavik al-Aslia in T.P. (B.S.) 140/83 The State of Israel v. Amar ben Mehusan id al-Tsaria, P.M 1986(2) 336, 346 (1985). This approach is reflected in legislation—specifically in paragraph 35 of Ottoman family law, which states that “Marriage is initiated by a proposal and the acceptance of the proposal either by the sides or by their representatives.” Similarly, paragraph 2 of the Jordanian law governing personal status defines marriage as “a legal contract between a man and a woman with the aim of establishing a family and bearing children.” For a comprehensive discussion of the Islamic conception of marriage, see Abd al Ati, Hammudah, The Family Structure in Islam 50–64 n.95 (1977). For a discussion as to whether the Islamic marriage is a contract or a sacrament, along with a comparison of the Jewish and Christian approaches to marriage see Abd al Ati, supra, at 56–59.

3 For a comparison of the Islamic approach with the different Christian approaches—Catholicism emphasizes the sacramental nature of the marriage while Protestantism is less rigid and far more flexible—see von Kipp, Theodor & Wolff, Martin, Das Familienrecht [Family Law] 114 (1923). For a more detailed account, see Coester-Waltjen, Dagmar & Coester, Michael, Formation of Marriage in Persons and Family, in International Encyclopedia of Comparative Law vol. 4, 6 (Glendon, Mary A. ed., 1997).

4 For a discussion of the husband's ability to annul a marriage at any time without his wife's agreement, even if the marriage has been consummated, see Mir-Hosseini, Ziba, Marriage on Trial: A Study of Islamic Family Law: Iran and Morocco Compared 165 (1993). For this unique type of marriage, which is problematic because it is closer to institutionalized prostitution than to institutionalized marriage, see Heffening, Willi, Mut'a, in Encyclopaedia of Islam vol. 7, 757–59 (Bosworth, C.E. et al. eds., 1960), and more extensively my discussion below.

5 See Schereschewsky, Benzion, Dine Mishpaḥah [Family Law in Israel] 279 (4th ed., 1993); 6 Encyclopedia Talmudit [Talmudic Encyclopedia] 354 (Zevin, Shlomo Y. et al. eds., 1954). For a legal disagreement over whether halakhic marriage is a normal contract, which is the opinion of judge Haim Cohen, or a special contract, in accordance with Judge Moshe Zilberg's ruling, see Israeli High Court 337/62 Rizenfeld v. Jacobson, 17 PD 1009, 1026–27 (1963). For a historical sketch from the development of Jewish marital laws to Christian sacramental marriage laws, see Satlow, Michael L., Slipping Toward Sacrament: Jews, Christians and Marriage, in Jewish Culture and Society Under the Christian Roman Empire 65 (Kalmin, Richard & Schwartz, Seth eds., 2003).

6 For a discussion of a woman's right to initiate her divorce, see the various articles in 4 Dine Israel (1973); Avishalom Westreich, The Wife's Right to Divorce in Jewish Law: History, Dogmatics and Hermeneutics, 62 Journal of Jewish Studies 340 (2011); Salaymeh, Lena, Every Law Tells a Story: Orthodox Divorce in Jewish and Islamic Legal Histories, 4 UC Irvine Law Review 19 (2014). For the possibility of finding sources, at least in the Palestinian Talmud and in Palestinian tradition, that a woman may, in principle, introduce a condition at the time of the marriage that if she should hate her husband, he would be forced to divorce her, just as he could divorce her if he hated her, see my discussion in Margalit, Yehezkel, The Jewish Family: Between Family Law and Contract Law 68–105 (2017).

7 See Rabbeinu Asher, Resp. ha-Rosh ch. 42, s.v. “dayo” (1954). For confirmation of the effectiveness of this decree and its wide acceptance in different communities, see, for example, Rabbi Nissim ben Reuven Girondi (the Ran) Resp. ha-Ran ch. 38 (1950). For a summary of the different opinions regarding this decree, see 17 Talmudic Encyclopedia 378 (Zevin, Shlomo Y. et al. eds., 1990); Schereschewsky, supra note 5, at 280–81.

8 For criticism of the religious marital structure in general, and the Jewish structure in particular, see Triger, Zvi H., The Gendered Racial Formation: Foreign Men, “Our” Women, and the Law, 30 Women’s Rights Law Reporter 479 (2008–2009); Triger, Freedom from Religion in Israel: Civil Marriages and Cohabitation of Jews Enter the Rabbinical Courts, 27 Israel Studies Review 1 (2012); Triger, “A Jewish and Democratic State”: Reflections on the Fragility of Israeli Secularism, 41 Pepperdine Law Review 1091 (2014); Halperin-Kaddari, Ruth & Yadgar, Yaacov, Between Universal Feminism and Particular Nationalism: Politics, Religion and Gender (In)Equality in Israel, 31 Third World Quarterly 905 (2010), and more extensively Ruth Halperin-Kaddari, Women in Israel: A State of Their Own (2004). For a discussion of the different halakhic aspects of the refusal to grant a get, see, for example, Levmor, Rachel, Pre-Nuptial Agreements with the Aim of Preventing the Husband's Refusal to Give a Get, 23 Shnaton ha-Mishpat ha-Ivri [Annual Journal of the Institution for Research in Jewish Law] 127, 144–45 (2005), and all the other references discussed in the chapter 4 of Margalit, supra note 6.

9 Margalit, supra note 6.

10 Id. at chapter 4.

11 For the claim that there is nothing in Jewish law to prevent a temporary marriage, either for a period of days or months, or with a view to dissolving it at an unspecified future date, see Cohn, Haim, Jewish Law in Israeli Jurisprudence 16 (1968); Meislin, Bernard, Jewish Law of Marriage in American Courts, 11 Journal of Family Law 271, 275 n.13 (1971–1972).

12 See Elon, Menahem, Jewish Law: History, Sources, Principles (Auerbach, Bernard & Sykes, Melvin J. trans., 1994); Elon, Jewish Law Cases and Materials (1999), and more specifically Elon, More About Research into Jewish Law, in Modern Research in Jewish Law 66 (Jackson, Bernard S. ed., 1980). For the historical-dogmatic standpoint of his research books, see Folk, Ze'ev W., What Is “Jewish Law”? A Review of Jewish Law: History, Sources, Principles-Ha-Mishpat Ha-Ivri by Elon Menachem. Jewish Publication Society, 1994, 11 Journal of Law and Religion 835 (1994). For other possible methods of halakhic research, see Englard, Izhak, Research in Jewish Law: Its Nature and Function, in Modern Research in Jewish Law 21 (Jackson, Bernard S. ed., 1980); Haim H. Cohn, The Methodology of Jewish Law-A Secularist View, in Modern Research in Jewish Law, supra, at 123; Cohen, Boaz, Jewish and Roman Law: A Comparative Study Vol. 1 viixxvii (1966).

13 For a seminal writing in the historic method of halakhic research, see Shalom Albeck, Law and History in Halakhic Research, in Modern Research in Jewish Law, supra note 12, at 1, and the various publications of Chaim Soloveitchik. For work supporting Albeck's method, see Baruch Shiber, The Albeck System in Talmudic Research, in Modern Research in Jewish Law, supra note 12, at 112. See also Segal, Peretz, Jewish Law During the Tannaitic Period, in An Introduction to the History and Sources of Jewish Law 101, 137 (Hecht, Neil S. et al. eds., 1996).

14 Babylonian Talmud, Yoma 18b; Babylonian Talmud, Yevamot 37b. For a clarification of the exact wording of the text, which is relevant to the issue of “Who will be mine for a day?,” see, for example, Ephraim E. Auerbach, Hazal Pirkei Emunot ve-Deot [The Sages: Their Concepts and Beliefs] 422 n.28 (1969), and the variants quoted by 2 Dikdukei Sofrim ha-Shalem on Tractate Yevamot 3334 (Lees, Avraham ed., 1983), with the wealth of authorities quoted in the latter work.

15 In the Munich manuscript we find his full name, “Rav Nahman bar Yitzhak,” even though this addition is not found in the manuscript editions of Yevamot. For an attempt to identify the sage, see Elman, Yaakov, Returnable Gifts in Rabbinic and Sasanian Law, 6 Irano-Judaica 139, 153 n.29 (2008).

16 In the version in Tractate Yevamot, Rivan and other early authorities, as well as the manuscripts, prefer יומי (yome, or “days”), as do Rashash and Rashi.

17 Babylonian Talmud, Yoma 18b, with the parallel in Babylonian Talmud, Yevamot 37b. Unless otherwise noted, all translations from the Babylonian Talmud in this article are from the Online Soncino Babylonian Talmud Translation. Soncino Babylonian Talmud. Translated into Enlgish with Notes, Glossary and Indices Under the Editorship of Rabbi Dr. I Epstein, posted by Charles Jones, August 10, 2015, http://ancientworldonline.blogspot.co.il/2012/01/online-soncino-babylonian-talmud.html. Here and throughout the article, acute brackets indicate interpolations found in the translations, and square brackets indicate my interpolations. As noted above, all other translations from the Hebrew are mine.

18 See, for example, Schremer, Adiel, Zahar u-Nekeva Bar'am [Male and Female He Created Them: Jewish Marriage in the Late Second Temple, Mishnah and Talmud Periods] 206 (2003), who assumed that the text is not discussing fully legal marriages, because these marriages do not involve normal, day-to-day family life, but “he is renting an escort service for the night.” For a similar criticism of the sages’ behavior, see Hershberg, A.S., Yofya ve-Hityafuta shel ha-Isha bi-Zman ha-Talmud [The Beauty of the Woman in the Talmudic Period], 4 He-Atid 1 (1923) (“Even our sages in the Talmud had different notions of modesty and immorality according to the time and the place.”). For a comparison of modesty in the Jewish society of Erez Israel and the lack of modesty in Babylonian Jewish society, see Hershberg, supra, at 4–10.

19 Her, Moshe D., Ha-Nisuin mi-Behina Socio-Economit Lefi ha-Halakha [The Marriage from Halakhic-Socio-Economic Perspective], in Mishpahot Beit Yisrael [Jewish Families] 37, 40 (1976), together with the sources he cites in n.16.

20 For a discussion of the extent to which the early rabbinic authorities took the text literally to mean a full marriage, including marital relations that could end in pregnancy, see tosafists in Babylonian Talmud, Yevamot, s.v. “Yihudi.” For a rejection of this view, see, for example, Hagahot Maharam and Yissachar Eilenberg, Resp. Beer Sheva ch. 26 (2004). For further discussion, see Ben-Zion M. Uziel, Resp. Mishpatei Uziel, Even ha-Ezer 2:45, at 132–34 (1964).

21 Babylonian Talmud, Yoma 18b, s.v. “Man”; Babylonian Talmud, Yevamot 37b, s.v. “Man.”

22 See, for example, the unequivocal statement by Ashtori haParchi, Kaftor vaPerach [Button and Flower] ch. 44 (1994).

23 For further discussion of the difference between Rashi's explanation and that of the tosafists, see Maharsha, s.v. “Yihudi be-Alma.” For a summary of the first six opinions presented, see Shlomo Ganzfried, Lehem ve-simla on the Shulhan Arukh, Yore De'ah 192:10 (1997).

24 Yitzhak bar Sheshet Perfet, Resp. Rivash ch. 398 (1968).

25 Isaiah the Elder of Terani (Rid) in his commentary to the Babylonian Talmud, Yoma 18b.

26 Rabbenu Hananel, Commentary to Tractate Y oma 18 (1993) (my emphasis).

27 Meiri, in his work Bet ha-Behirah in his commentary to the Babylonian Talmud, Yoma 18b (my emphasis).

28 See Yosef Z. Diner (Ritzad), Novellae to Tractate Zebahim Vol. 4 88 (1999).

29 See Bloch, Chaim, Veda ma-sheTashiv [And Know What to Answer] 2630 (1962). In his introduction he rejects the two suggestions of Moshe Leiter, Zuto shel Yam [Flooding of the Sea] (1932), that the sages’ announcement was intented to eradicate the practice of marrying a woman without following the proper halakhic procedure and to save a man from sinning by instituting preventive measures. He bases himself on a responsum by Yitzhak Ettinger, Resp. Mahariya ha-Levi ch.16 (1970), who also found the announcement unclear and puzzling.

30 Shmuel Shtrason (Rashash), in his commentary to this text in Yoma 18b.

31 See Emden, Yaakov B., Resp. She'elat Ya'abez 2:15 (2004). For a similar scholarly perspective, which concludes that this is a case of pilagshut, see Elman, supra note 15, at 155. For a discussion of the pilegesh in the Bible, see the following references in Hebrew: Ariel, Yaakov, Ha-Pilegesh u-Ma'amadah ha-Hilkhati be-Miqra [The Concubine and Her Status in the Bible], 8 Megadim 57 (1989). Taking a pilegesh was a common practice in Maimonides's day, and he refers to it in various responsa, see Shtober, Shimon, Al Shte She'elot she-Hufnu el Rabenu Avraham ben ha-Rambam [On Two Questions That Were Referred to Rabbino Avraham, the Son of Maimonides], 6–7 Shnaton Ha-Mishpat Haivri 399 (1979–1980). For a modern attempt to revive the institution of pilagshut using these precedents, see, for example, Zohar, Zvi, Zogiyut Al Pi haHalakha Lelo Hopa veKidushin [Halakhic Positions Permitting Nonmarital Sexual Intimacy], 17 Akdamot 11 (2006). Needless to say, this suggestion was strongly criticized, inter alia, by Henkin, Yehuda H., Aharita mi Yeshurena [Who Knows What Will Be Its Fate?], 17 Akdamot 33 (2006); Ariel, Shmuel, Pilagshut ena “Haverut” [Concubine Is Not Only Friendship], 17 Akdamot 41 (2006); Tikachinski, Michal and Sperber-Frankel, Rachel, Tazhiram min ha-Pilegesh [You Should Warn Them from the Concubine], 17 Akdamot 67 (2006); and Zvi Zohar's response to the objections, in Teshuva le-Magivim [A Response to the Responders], 17 Akdamot 77 (2006).

32 Quoted in Otzar ha-Geonim [The Treasure of the Geonim] on Babylonian Talmud, Yoma 18b (Benjamin M. Levin ed., 1928).

33 These opinions were summarized by Uziel in his responsa, see Ben-Zion M. Uziel, Resp. Piskei Uziel be-She'elot ha-Zman ch. 54 (1977). For a similar approach, see, for example, Moshe Feinstein, Dibrot Moshe on Babylonian Talmud, Yevamot 82 n.68 (1979), who reached the conclusion that there was no issue of divorce, since the woman would be called for every time the sage returned to the city, which occurred frequently.

34 Avraham min ha-Har in his commentary to Yevamot, s.v. “le-Yome” (Arieli ed., 2000) (my emphasis).

35 See Lowy, Simeon, The Extent of Jewish Polygamy in Talmudic Times, 9 Journal of Jewish Studies 115, 123 (1958); Gafni, Isaiah, Yehudei Bavel beTkufat haTalmud [The Jews of Babylonia in the Talmudic Era] 272 (1990).

36 See, respectively, the following sources in Hebrew: Uziel, Ben-Zion M., Man Havya le-Yom [Who Will Be Mine for a Day?], 99–100 Ha-Posek 1979 (1948); Bloch, supra note 29, at 26. For a rejection of this explanation, see Margaliot, infra note 38. It is interesting to note that Chaim Berlin, Resp. Nishmat Hayyim ch. 142 (2008), raised this possibility but ultimately rejected it.

37 See comment on Uziel by Hillell Posek, editor of Ha-Posek, in Man Havya le-Yom [Who Will Be Mine for a Day?], Ha-Posek 1979, at 1542.

38 For a review of the last four explanations, and several rejections of these explanations, see the following research in Hebrew: Margaliot, Reuven, Man Havya le-Yoma [Who Will Be Mine for a Day?], 21 Sinai 176 (1947) (explanations); Uziel, supra note 36 (rejections); Kraus, Shmuel, Man Havya le-Yoma [Who Will Be Mine for a Day?], 22 Sinai 299 (1948) (rejections); Uziel, Ben-Zion M., Man Havya le-Yoma [Who Will Be Mine for a Day?], 101–02 Ha-Posek 1554 (1949) (rejections); Aminah, Noah, Man Havya le-Yoma [Who Will Be Mine for a Day?], 81 Sinai 169 (1977) (rejections). For further discussion, see Neusner, Yaakov, A History of the Jews in Babylonia Vol. 2 130 (1966).

39 See Shahla Haeri, Law of Desire: Temporary Marriage in Shi'i Islam (1989); Abu'l-Qasim Gourji, Temporary Marriage (Mut‘a) in Islamic Law (1987); Arthur Gribetz, Strange Bedfellows: Mutat Al-Nisa And Mutat Al-Hajj: A Study Based on Sunni and Shii Sources of Tafsir, Hadith and Fiqh (1994).

40 The film, Zu'aj al-Mat'a (The Mistaken Marriage), according to Behor, contributed to the cessation of such marriages, which were far too common in Egypt in the 1970s. See Behor, supra note 2, at 275 n.41.

41 This conclusion is based on Goldziher, Ignac, Introduction to Islamic Theology and Law 209 (Andras & Ruth Hamori trans., 1981). For an exhaustive discussion of the differences between the Sunni and Shi'ites, see Husain M. Jafri, The Origins and Early Development of Shi'a Islam (1979).

42 See Abd al Ati, supra note 2, at 108–09 (1977).

43 For a discussion of this claim, see Abd al Ati, supra note 2, at 106.

44 See Goitein & Ben Shemesh, supra note 2, at 129.

45 “The believer is only perfect when he has experienced a muta.” The source for this claim is Al-Ḥurr al-’Āmilī, Wasā’il al-S̲h̲ī’a [The Means of the Shi'a] 69, 2 (1288); Abd al Ati, supra note 2, at 103.

46 See Haeri, supra note 39, at 167; Cherry, Kristen, Marriage and Divorce Law in Pakistan and Iran: The Problem of Recognition, 9 Tulsa Journal of Comparative & International Law 319, 339 (2001).

47 See Khatib-Chahidi, Jane, Sexual Prohibitions, Shared Space and Fictive Marriages in Shi'ite Iran, in Women and Space: Ground Rules and Social Maps 112, 126 (Ardener, Shirley ed., 1981); Nasir, Amal J., The Islamic Law of Personal Status 59 (1990); Ghodsi, Tamilla F., Tying A Slipknot: Temporary Marriages in Iran, 15 Michigan Journal of International Law 645, 667–68 (1994).

48 See Haeri, supra note 39, at 51–53. For a review of contract law from both the practical and procedural aspects, which affect family law, and where this form of marriage differs from the standard marriage, see Petrushevsky, Il'ia P., Islam in Iran 144, 231 (Evans, Hubert trans., 1985); Cherry, supra note 46, at 336–40. For a review of the relevant practical and procedural Muslim requirements regarding the validity of this contract and the attempt to merge the two types of marriage, see Abd al Ati, supra note 2, at 108–09.

49 See Boyle-Lewicki, Edna, Need Worlds Collide: The Hudad Crimes of Islamic Law and International Human Rights, 13 New York International Law Review 43, 68 n.116 (2000).

50 For a more exhaustive discussion, see Heffening, supra note 4.

51 See, for example, Ammianus Marcellinus, xiv, 4, cited by Segal, Judah B., Arabs in Syriac Literature before the Rise of Islam, 4 Jerusalem Studies in Arabic and Islam 98 (1984). Although, I should point out that it is difficult to connect the phenomenon that he discusses with the Islamic muta because in those days the woman would bring a tent and spear to the man she was interested in, and after a certain time she was allowed to leave him. For a review of the roots of the institution of marriage in early Islam, see Stern, Gertrude H., Marriage in Early Islam 155 (1939); Schacht, Joseph, The Origins of Muhammadan Jurisprudence 266 (1950); Schacht, , An Introduction to Islamic Law 163 (1964).

52 See Rossini, Carlo Conti, Principi di diritto consuetudinario dell'Eritrea [Principles of Common Law of Eritrea] 189, 249 (1916).

53 For a discussion of this claim, see Smith, William Robertson, Kinship & Marriage in Early Arabia 82 (1903).

54 See Westermarck, Edvard A., The History of Human Marriage 267–88 (1922); George A. Wilken, Das Matriarchat (das Mutterrecht) bei den alten Arabern [The Matriarchy or Mother-right among the Ancient Arabs] 21–22 (1884); Ludwig Mitteis & Ulrich Wilcken, 2 Grundzüge und Chrestomathie der Papyruskunde [Basics of Papyrology, with an Anthology of Sources], part 1, at 203–08 (1912); Eugenio Griffini, Corpus Iuris di Zayd Ibn ‘Alī [The “Corpus Juris” of Zayd Ibn Alī ] 327 (1919).

55 See Iran: A Country Study 11 (Helen Chapin Metz ed., 1989).

56 .م. ت . ع .) فَمَا اسْتَمْتَعْتُم بِهِ مِنْهُنَّ فَآتُوهُنَّ أُجُورَهُنَّ فَرِيضَةً)

57 See Doi, Abdur Rahman I., Shari'ah: The Islamic Law 155–56 (1984).

58 .الا: كنا في جيش فأتانا رسولرسول صلعم فقال إنه قد أُذِن لكم أن تستمتعوا، فاستمتِعوا See Muhammad ibn Ismail al-Bukhari, Sahih al-Bukhari, The Book of Marriage, no. 5117–5118; Caetani, Leone, Annali Dell'islam [The Annals of Islam] 478 (1972).

59 خبرنا محمد بن یوسف، حدثنا ابن عیینة، عن الزھري، عن الربیع بن سبرة الجھني، عن ابیھ، قال نھى رسول . صلى علیھ وسلم عن نكاح المتعة عام الفتح “The opening year” is the year when Mecca was opened to Muslims (629). In this year, Muslims were allowed to enter the Haram in Mecca for the first time.

60 علیھ وسلم نھى عن رسول صلى .حدثنا محمد، حدثني ابن عیینة، عن الزھري، عن الحسن، وعبد ، عن ابیھما، قال سمعت علیا، یقول لابن عباس إن المتعة متعة النساء وعن لحوم الحمر الأھلیة عام خیبر Abdalla ben Abdalrahman al-Darami, Sanan al-Daram [The Traditions of al-Daram>] Vol. 2 64 (1966). For a list of sources, see Heffening, supra note 4.

61 For a review of muta marriages in modern Islamic law, see, for example, Sachiko Murata, Temporary Marriage in Islamic Law (2015); Rodgers-Miller, Brooke D., Out of Jahiliyya: Historic and Modern Incarnations of Polygamy in the Islamic World, 11 William & Mary Journal of Women & Law 541 (2005); Stigall, Dan E., Iraqi Civil Law: Its Sources, Substance, and Sundering, 16 Journal of Transnational Law & Policy 1, 5253 (2006); Hamoudi, Haider Ala, Sex and the Shari'a: Defining Gender Norms and Sexual Deviancy in Shi'i Islam, 39 Fordham International Law Journal 25, 41–45 (2015).

62 See, for example, Alexander D. Hamilton, A New Account of the East-Indies Vol. 2 51 (1732), first mentioned by Wilken, supra note 54, at 19.

63 See documentation in Hurgronje, C. Snouck, Mekka [Mecca] 156 (1888); 6 Hurgronje, C. Snouck, Verspreide Geschriften [Collected Works] 150 (1923).

64 See documentation in Victor Müller, En Syrie avec les Bédouins: les tribus du désert [In Syria with the Bedouins: The Tribes of the Desert] 231–32 (1931).

65 For a modern discussion of these marriages, see Hiba Basol-Taha, Nissuin Zmaniim baIslam meNekudat Mabatam Shel haHalakhah haMuslemit, haHuk vehaNormot haHevratiot [Temporary Marriage in Islam from the Perspectives of Shari'a, Civil Law and Social Norms] (M.A. thesis, Bar-Ilan University, 2008); Andaya, Barbara Watson, From Temporary Wife to Prostitute: Sexuality and Economic Change in Early Modern Southeast Asia, 9 Journal of Women's History 11 (1998).

66 See Voinarevich, Olga, A Fairy Tale Interrupted: The Long-Term Impacts of Child Marriage in Yemen and the Necessary Adjustments to Both Local and International Laws to Stop the Practice and to Protect Voiceless Child Brides, 16 Rutgers Race & Law Review 203, 213 n.65 (2015); Witte, John & Nichols, Joel A., Marriage, Religion, and the Role of the Civil State: More Than a Mere Contract: Marriage as Contract and Covenant in Law and Theology, 5 University St. Thomas Law Journal 595, 601 n.27 (2008); De Seife, Rodolphe J. A., Book Review, 42 American Journal of Legal History 84, 86 (1998) (reviewing Muhammad Khalid Masud et al. eds., Islamic Legal Interpretation: Muftis and Their Fatwas); see also Hamoudi, supra note 61, at 41–45.

67 In re Marriage of Vryonis 248 Cal. Rptr. 807 (Cal. Ct. App. 1988). For a discussion of the ruling see, e.g., Cherry, supra note 46, at 350–51; see generally, Shultz, Marjorie M., Contractual Ordering of Marriage: A New Model for State Policy, 70 California Law Review 204, 250, 273 (1982).

68 Y.J. v. N.J., (1994) O.J. No. 2359. See also In re Marriage of Dawley, 551 P.2d 323 (Cal. 1976), and more recently, In the Matter of the Marriage of Soleimani, 2012 WL 3729939 (Kan. Dist. Ct.). For a detailed discussion of the rulings in the American and Canadian courts, see Khan, Shahnaz, Race, Gender, and Orientalism: Muta and the Canadian Legal System, 8 Canadian Journal of Women & Law 249, 254–57 (1995); Fournier, Pascale, The Erasure of Islamic Difference in Canadian and American Family Law Adjudication, 10 Journal of Law & Policy 51, 5159 (2001). For a discussion of Western court rulings on Muta marriages, see Estin, Ann Laquer, Embracing Tradition: Pluralism in American Family Law, 63 Maryland Law Review 540, 565 n.153 (2004); Ghori, Safiya, The Application of Religious Law in North American Courts: A Case Study of Muta Marriages, 10 Journal of Islamic Law & Culture 29, 3740 (2008).

69 See, e.g., his commentary on Genesis, 38:15, 21–22, where the term kedeshah appears in the story of Judah and Tamar, and he translates it using the root “muta.” In his commentary to Deuteronomy 23:18, “There shall be no harlot (kedeshah) of the daughters of Israel, neither shall there be a sodomite of the sons of Israel,” he uses a similar translation, and Zucker notes that the translation would thus read, “There shall be no temporary marriages among the daughters of Israel.” Infra note 71, at 477–78.

70 See Zucker, Moshe, Al Tirgum Rasag la-Torah: Parshanut, Halakha u-Politika be-Tirgum ha-Torah shel Rabbi Sadya Gaon: Te'udot u-Mehkarim [On the Commentary of Saadya Gaon to the Torah] 477–78 (1959); see also Kapach, Yosef, Perushe Rabbenu Sadya Gaon al ha Torah [The Commentaries of Saadya Gaon to the Torah] 180 n.3 (1994).

71 See Zucker, supra note 70.

72 Published by Scheiber, Alexander & Hahn, Yizhak, Dapim meSefer haMitzvot leRav Saadya Gaon [(Manuscript) Leaves from Se'adya's Sefer ha-Mitzvot], 28 Tarbiz 48 (1959). For a detailed discussion of these sources, see Friedman, Mordechai. A., haHalakhah Keedot leHayei haMin Etzel haYehudim Shebeartzot haIslam Bimei Habeinaim: Kisuy haPanim veNissuei Mutah [Halakha as Evidence of Sexual Life Among Jews in Muslim Countries in the Middle Ages], 45 Peamim 89, 100–01 (1991); see generally, Lasker, Daniel J., Saadya Gaon on Christianity and Islam, in The Jews of Medieval Islam: Community, Society, and Identity 165 (Frank, Daniel ed., 1995); Freidenreich, David M., The Use of Islamic Sources in Saadiah Gaon's “Tafsīr” of the Torah, 93 Jewish Quarterly Review 353 (2003); David H. Frankel, Studies in Saadiah Gaon's Arabic Translations 21 (M.A. thesis, Ohio State University, 2012).

73 See Zucker, supra note 70, at 478.

74 Hirschberg, Haim Z., Le-Heker Rav Sadya Gaon ve-Tequfato [The Research of Rav Saadya Gaon and His Period], 31 Tarbiz 415, 421 (1962). The Islamic influence on halakhah in the Geonic period has been discussed extensively. See, e.g., Blumberg, J., Munahim Mishpati'im Aravi'im mi-Dine ha-Kinyan be-Geonim uve-Rambam [Arabic Legal Terms in the Field of Ownership in the Geonim and in the Rambam], 14–15 Shnaton ha-Mishpat ha-Ivri 61 (1988–1989). In addition to the vivid writing of Gideon Libson in Hebrew, see his seminal research: Libson, Halakhah and Reality in the Gaonic Period: Taqqanah, Minhag, Tradition and Consensus: Some Observations, in The Jews of Medieval Islam: Community, Society, and Identity 67 (Frank, Daniel ed., 1995), and more extensively, Lisbon, Jewish and Islamic Law: A Comparative Study of Custom during the Geonic Period 115 (2003). See also M. Tirza Mitcham, Sefer ha-Bagrut le-Rav Shmuel ben Hofni Gaon ve-Sefer ha-Shanim le-Rav Yehuda ha-Kohen [The Book of Maturity of Rav Shmuel Ben Hofni and the Book of Years of Rav Yehuda] 68 (1999). For a general discussion of the influence of the surrounding culture on Jewish marriage, see Gafni, supra note 35, at 266–73; Jackson, Bernard. S., How Jewish is Jewish Law?, 55 Journal of Jewish Studies 201 (2004); Isaiah. Gafni, M., The Institution of Marriage in Rabbinic Times, in The Jewish Family: Metaphor and Memory 13 (Kraemer, David ed., 1989).

75 Friedman, supra note 72, at 100–01.

76 See Abu Yusuf Ya'kub al-Kirkisani, Ya'qub al-Qirqisani on Jewish Sects and Christianity: A Translation of “Kitab al-anwar” Book 1 with Two Introductory Essays (1984). For a similar translation, see Alanuar, at 728, quoted by Zucker, supra note 70, at 478 n.63.

77 See David ben Abraham al-Fasi, Kitāb Jāmi’ al-Alfāẓ [The Book of Collected Meanings] Vol. 2 541 (1936–1945). These two translations are to be found in Friedman, supra note 72, at 101–02.

78 Research on the influence of Persian law on the Jews living under its suzerainty has received attention in recent years. There is a periodical devoted to the subject and several volumes have already been published. The periodical is edited by Shaul Shaked and its name describes its content: Irano-Judaica: Studies Relating to Jewish Contacts with Persian Culture throughout the Ages. Yaakov Elman has devoted a series of articles to the subject: Elman, Yaakov, “Up to the Ears” in Horses’ Necks (BM 108a): On Sasanian Agricultural Policy and Private “Eminent Domain, 3 Jewish Studies, an Internet Journal 95 (2004); Elman, Marriage and Marital Property in Rabbinic and Sasanian Law, in Rabbinic Law in Its Roman and Near Eastern Context 227 (Hezser, Catherine ed., 2003); Elman, Middle Persian Culture and Babylonian Sages: Accommodation and Resistance in the Shaping of Rabbinic Legal Tradition, in The Cambridge Companion to the Talmud and Rabbinic Literature 165 (2007); Elman, Acculturation to Elite Persian Norms and Modes of Thought in the Babylonian Jewish Community of Late Antiquity, Neti'ot Ledavid 31 (2004). In addition to the research by Adiel Schremer, there are a number of works which note the influence of the alien Persian environment on Jewish marriage in Persia: Eliyahu Ahdut, Ma'amad ha-Isha ha-Yehudia be-Bavel be-Tequfat ha-Talmud [The Status of the Jewish Babylonian Woman in the Talmudic Period] 57 (Ph.D. dissertation, The Hebrew University of Jerusalem, 1999); Michael. L. Satlow, Jewish Marriage in Antiquity (2001).

79 See Elman, supra note 15, at 141. See also Septimus, Zvi & Selaymeh, Lena, Temporalities of Marriage: Jewish and Islamic Legal Debates, in Talmudic Transgressions: Essays in Honor of Daniel Boyarin 201 (Rosen-Zvi, Ishay et al. , 2017).

80 Elman, supra note 15, at 151–54.

81 See, e.g., Hjerrild, Bodil, Islamic Law and Sasanian Law, in Law and the Islamic World: Past and Present 49, 53 (Toll, Christopher & Skovgaard-Petersen, Jakob eds., 1995); Macuch, Maria, Die Zeitehe im Sasanidischen Recht—ein Vorlaufer der shi'itischen mut'a-Ehe in Iran? [Temporary Marriage in Sassanid Law: A Precursor of the Shi'ite mut'a-Marriage in Iran?], 18 Archaeologische Mitteilungen aus Iran 187 (1985); Elman, supra note 15, at 154; Adiel Schremer, Nissuin veHakamat Mishpaha beYahadot Bavel beTkofat haTalmud [Jewish Marriage in Talmudic Babylonia] 281 n.84 (Ph.D. disseration, The Hebrew University of Jerusalem, 1996).

82 For more on this ancient legal codex, see generally George W. Carter, Zoroastrianism and Judaism (1970); Women in Iran from the Rise of Islam to 1800 (Nashat, Guity & Beck, Lois eds., 2003); Jenny Rose, Zoroastrianism: An Introduction (2011).

83 For early records, see Perikhanian, Anahit, Iranian Society and Law, in 3 Cambridge History of Iran 627, 649–50 (Sharter, Ehsan Y. ed., 1983). Other sources are supplied by Elman, supra note 15, at 154, and the sources he cites in n.35.

84 For information on the frequency of polygamy in Babylonia, see Maharezi, Aly-Ahbar, La Famille Iranienne [The Iranian Family] 133–34 (1938), together with the different sources cited by Gafni, supra note 35, at 266–73; Elman, supra note 15, at 159–60.

85 For a discussion of this matter, see Baron, Salo W., A Social and Religious History of the Jews Vol. 2 226 (1952). With regard to the monogamous life of Jews under Roman suzerainty, see Friedman, Mordechai A., Ribui Nashim be-Yisrael [Polygamy among the Jews] 28–32 (1986); Elimelech Westreich, Tmorot beMaamad haIsha baMishpat haIvri: Masa Ben Masorot [Transitions in the Legal Status of the Wife in Jewish Law: A Journey among Traditions] (2002) (Consult the references in the index, s.v. “Tnai Monogamia.”); Schremer, Adiel, How Much Jewish Polygyny in Roman Palestine?, 63 Procedings of the American Academy for Jewish Research 181 (2001).

86 This is the conclusion of several scholars, such as Her, supra note 19; Elman, supra note 15. See also the sharp criticism of Nissim H. M. Mizrahi, Resp. Admat Kodesh, Even ha-Ezer 1:50 (1991).

87 See Gafni, supra note 35, at 272–73.

88 See Falk, supra note 1.

89 For an explanation of this term, see Coulson, Noel J., A History of Islamic Law 111 (1964).

90 See Falk, supra note 1.

91 See Meron, supra note 2, at 23.

92 See Goitein & Shemesh, supra note 2, at 129.

93 The muta marriage is still common in Iran, see Khomeini, Ruhollah, A Clarification of Questions: An Unabridged Translation of Resaleh Towzih Al-Masael 311 (Borujerdi, J. trans., 1984). There are a number of scholarly works on muta marriages in Iran. Examples of contemporary works include Howard, I. K. A., Mut‘a Marriage Reconsidered in the Context of the Formal Procedures for Islamic Marriage, 20 Journal of Semitic Studies 82 (1975); Haeri, Shahla, The Institution of Mut‘a Marriage in Iran: A Formal and Historical Perspective, in Islam: Critical Concepts in Sociology 154–72 Vol. 3 (Turner, Bryan S. ed., 2003); Haeri, Temporary Marriage and the State in Iran: An Islamic Discourse on Female Sexuality, 59 Social Research 201 (1992).

94 See Browne, Edward G., A Year amongst the Persians 505–06 (1927); 1 Jakob E. Polak, Persien: Das Land und Seine Bewohner: Ethnographische Schilderungen [Persia: The Land and Its Inhabitants: Ethnographic Sketches] 207–08 (1865); Morier, James J., The Adventures of Hajji Baba of Ispahan Vol. 3, chapters 6–8 (1970); 1 >Curzon, George N., Persia and the Persian Question 164–65 (1996). For the practical aspects today of issuing Iranian visas to temporary wives, see U.S. Department of State, U.S. Visa: Reciprocity and Civil Documents by Country, Islamic Republic of Iran, callout box, Marriage, Divorce Certificates (last visited Feb. 12, 2018), http://travel.state.gov/content/visas/en/fees/reciprocity-by-country/IR.html.

95 For such academic projects, see, for example, Jacob Neusner & Tamara Sonn, Comparing Religions through Law (1999).

The contents of this article were originally published as part of the chapter “Temporary Marriage—A Possible Solution to the Problem of the Agunah?” in Yehezkel Margalit, The Jewish Family: Between Family Law and Contract Law (Cambridge: Cambridge University Press, 2017), 106–34. Portions of the chapter are reprinted here by permission of the publisher (all rights reserved) and the author with minor modifications to conform with JLR style.

Keywords

Related content

Powered by UNSILO

TEMPORARY MARRIAGE: A COMPARISON OF THE JEWISH AND ISLAMIC CONCEPTIONS

  • Yehezkel Margalit (a1)

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed.