Restricting Polygyny in Modern Egypt

Taqyīd al-mubāḥ means ‘to restrict the permissible.’ As a technical legal term, it refers to the ability of Muslim rulers to restrict acts that the sharīʿa permits in order to prevent a social harm and secure a public benefit. Since the late nineteenth century, the concept of taqyīd al-mubāḥ has been used to justify the state’s restriction of legally permissible acts such as slavery, polygyny, child marriage, and verbal divorce (ṭalāq shafawī). Its pervasiveness in the modern period raises a set of questions regarding the origins of the concept, the reasons for its growth and development, and why it is so pervasive in present-day legal discourse. My paper identifies the nineteenth and twentieth-centuries Egyptian debate on polygyny as an instance in which scholars reference taqyīd al-mubāḥ.

Advocates for Restricting Polygyny:

Scholars like Muḥammad ʿAbduh (d. 1905) and Rashīd Rīḍā (d. 1935) believed polygyny led to marital disharmony and weakened families. This, they argued, made Egypt more susceptible to European colonization in the face of a fragile social structure. Recognizing the growing authority of the state over legal matters, ʿAbduh and Rīḍā saw an opportunity to utilize taqyīd al-mubāḥ. They argued that the state, with its expanding control over the courts, could restrict polygyny for the public good. This approach broadened the role of the state as a tool for social change, leveraging Islamic legal principles to address contemporary issues.

Opposing the Restriction of Polygyny:

Opponents of restricting polygyny, such as Ḥamza Fatḥallāh (d. 1918), presented counterarguments. Fatḥallāh viewed polygyny as a means to increase population, a crucial factor for a strong Egypt. He believed family reform should not be dictated by legislation, arguing that religious influence held more sway in private matters. The most comprehensive challenge came from the Grand Mufti of Egypt, Muḥammad Bakhīṭ al-Muṭīʾī (d. 1935). Al-Muṭīʾī presented two main arguments. Firstly, he argued that the state's role was limited to establishing punishments for crimes not already defined by Islamic law. Since polygyny wasn't a crime, restricting it fell outside the state's jurisdiction. Secondly, he argued that taqyīd al-mubāḥ only applied to public acts where everyone participated, not personal matters like marriage. Even if considered permissible (though al-Muṭīʾī argued the permissibility depended on the situation), polygyny remained a private affair beyond the state's control.

Evolution of the Debate and the State’s Role:

The debate on polygyny and taqyīd al-mubāḥ reflects the evolving role of the state in 19th-century Egypt. In the early 19th century, the state’s limited authority meant scholars like Rifāʿa al-Ṭaḥṭāwī (d. 1873) and ʿAlī al-Mubārak (d. 1893), who disapproved of polygyny, didn’t advocate for state intervention. However, by the late 19th century, the state's increased control over the courts through the establishment of mixed and native courts presented an opportunity. ʿAbduh and Rīḍā, recognizing this shift, leveraged the state's growing role in legislation to push for restricting polygyny.

Countering the Expansion of State Power:

Scholars like Fatḥallāh and al-Muṭīʾī, in turn, sought to limit the application of taqyīd al-mubāḥ. They worried about granting the state unrestricted power to reshape Islamic law. Their counterarguments aimed to preserve their legal authority and protect traditional Islamic legal principles in the face of a changing social and political landscape.

Conclusion:

The debate on polygyny and taqyīd al-mubāḥ serves as a window into the complex relationship between Islamic legal traditions, social change, and the evolving role of the state in 19th-century Egypt. It highlights the struggle to reconcile traditional religious authority with the need to address contemporary social issues. The debate also showcases the strategic use of Islamic legal principles to navigate these challenges.