² No. 2354.

³ No. 1–57–343. A Ẓahīr is a royal decree.

⁴ No. 1–57–190.

^{page 147 note 1} I.e., in a technical sense, as a source of law where no authoritative text is available.

^{page 147 note 2} Enunciated, it may be noted, in a quotation from a Shāfi’ī, rather than a Mālikī, authority.

^{page 148 note 1} Although provision is also made for a judge, as an exceptional measure, to take cognisance of other claims of marriage and to rely on such evidence as the Sharī’a accepts in establishing them (cf., art. 5 (3)).

^{page 148 note 2} Although article 7 permits a judge to authorise the marriage of one who is insane or simple provided a committee of psychiatrists declare that marriage would help his recovery and the other party is cognisant of the position and consents thereto.

^{page 148 note 3} Although cases may be submitted to a judge, where hardship is to be apprehended, with a view to obtaining a special dispensation for marriage at a rather earlier age (cf. art. 8 (I)).

^{page 149 note 1} I.e., the last word is with her.

^{page 149 note 2} I.e., may be invoked by them alone.

^{page 149 note 3} Cf., art. 6 of Jordanian Law of Family Rights, 1951 (summarised in the margin as “Equality (kafā’a) in respect of age”) which provides that the court shall not permit a marriage in which the difference in age between the spouses exceeds twenty years unless satisfied that it is in the interests of the younger party and with her free consent.

^{page 150 note 1} The first Sūra in the Qur’ān.

^{page 151 note 1} Termed nikāḥ al-tafwīḍ in Mālikī texts. In the case of marriages more informally contracted the normal Mālikī law is, presumably, still applied in this regard.

^{page 151 note 2} Cf., art. 42 (5).

^{page 151 note 3} E.g., arts. 25–29.

^{page 151 note 4} Art. 38: cf., art. 21 of the Jordanian Law of Family Rights.

^{page 151 note 5} In section (I).

^{page 152 note 1} Both these provisions are in section (2).

^{page 152 note 2} Sūra IV, 3.

^{page 152 note 3} Art. 17. This reform is based on the last phrase in the “Verse of Polygamy” (allā ta’ūlū), according to al-Shāfi’i’s interpretation (“that you may not have a large family”) and the application suggested by Muḥammad ‘Abduh.

^{page 152 note 4} Although it is noteworthy that the Minister of Justice, in his statement to the Press, emphasised that this condition was one which “the Qur’ān itself regards as incapable of realization”. This argument disregards, of course, the distinction which most Muslim jurists make between that equality of treatment between co-wives which they regard as within a husband’s power, on the one hand, and that which he cannot command, on the other—a distinction which is regarded as making the Qur’ānic condition for polygamy much less draconic than the Minister’s words.

^{page 153 note 1} A reform justified, presumably, by the general principle that in Mālikī law a wife may claim a divorce for injury.

^{page 153 note 2} Although it is to be noted that the Tunisians alone have taken the Minister’s argument to its logical conclusion and prohibited polygamy altogether on the grounds that no man can fulfil the Qur’ānic condition for its permissibility (cf., Tunisian Law of Personal Status, sec. 18).

^{page 153 note 3} Art. 33 (2).

^{page 154 note 1} Cf., Art. 21 of the Jordanian Law, art. 14 of the Syrian.

^{page 155 note 1} Sec. 30.

^{page 156 note 1} Art. 1.

^{page 156 note 2} Art. 68 and art. 89 (i) and (ii), respectively.

^{page 156 note 3} Cf., art. 2 of the Egyptian Law, art. 70 of the Jordanian and art. 90 of the Syrian.

^{page 156 note 4} Cf., art. 3 of the Egyptian Law, art, 72 of the Jordanian, and art. 92 of the Syrian.

^{page 156 note 5} Cf., art. 2 of the Egyptian Law, art. 70 of the Jordanian and art. 90 of the Syrian.

^{page 156 note 6} That of redhibitory defects.

^{page 158 note 1} E.g., by the wife herself.

^{page 158 note 2} Cf., Tunisian Law of Personal Status, sec. 19.

^{page 158 note 3} Law No. 25 of 1929, arts. 15 and 17.

^{page 158 note 4} Syrian Law of Personal Status, art. 121 (2).

^{page 159 note 1} I.e., by Muḥammad ibn al-Ḥakam—although he, in fact, recommended a lunar rather than a solar year.

^{page 159 note 2} Art. 82.