The institutionalization of love – namely, marriage – is then governed by certain laws, given that the couple and the family belong to a broader society with laws and in turn, the couple and the family constitute the basic unit or building block of a broader society. Thus, the fact that there are laws which govern the institution of marriage in virtually all societies is because of how the couple and the family relate to a society as a whole and their role in the formation and sustainability of a society. Why there are laws which govern marriage is because the decision for two individuals to become a couple and to create a family not only impacts the couple, but the decision also has consequences and implications for the society in which the couple and family is formed.
It is obvious that the laws which govern marriage differ from one culture to another and from one region of the world to another. These differences in laws regarding marriage not only account for the differences in culture, language, and race, but they also account for differences in environment, history, and the temperament of a race. For instance, there is Jewish and Talmudic law on one hand and Islamic and Quranic law on the other hand, even though both religions originate from Abraham.
Part of the problem with British Victorianism and European Colonialism was the carelessness and negligence towards these cultural and regional differences and nuances. All were deemed as backward and primitive, without accounting for realities and truths. And today, there are colonial-era laws in the civil code of places like Lebanon that are moot or no longer exist in France, as one Lebanese friend of mine told me recently. For instance, British Victorianism and European Colonialism overlook the fact that Islam gave women the right to a divorce long before divorce became normal in the European world.
As the Islamic scholar and theorist Abu Ala Maududi argued, marriage is “the cornerstone of human culture” and in turn, marital law “is the most important and the most far-reaching of all social laws.” In the Islamic view, a marriage without compatibility, compassion, morality, and love is merely carnal and can lead to more harm than good for both the couple and for the society as a whole. Moreover, Islamic marital law has proven over the course of time to be more progressive than those of its counterparts. For Muslims, the example of an exemplary and outstanding character and life is the founder of the religion, namely, the Prophet Muhammad. In turn, the Prophet Muhammad’s first marriage was to a woman who was fifteen years older than him and who had already gone through a previous marriage. Muslim men who have the means to do so are encouraged to marry widows and divorcees. But consider, for instance, what the “Kama Sutra” has said about marriage and what the Hindu outlook towards marriage is:
“A man should fix his affections upon a girl who is of good family, whose parents are alive, and who is three years or more younger than himself. She should be born of a highly respectable family, possessed of wealth, well connected, and with many relations and friends. She should also be beautiful, of a good disposition, with lucky marks on her body, and with good hair, nails, teeth, ears, eyes, and breasts, neither more nor less than they ought to be, and no one of them entirely wanting, and not troubled with a sickly body.”
Then comes the most outrageous part: “But at all events…a girl who has already joined with others (i.e., no longer a maiden) should never be loved, for it would be reproachable to do such a thing.”
Such views on marriage are common throughout various cultures and regions of the world. But what this view overlooks are the sacrifices which the woman makes by conforming to the conventional bonds of marriage and maternity, namely, her “charm and three-quarters of her intelligence” to borrow from Bertrand Russell. Thus, the question of whether modern marriage is the main source of happiness or the main source of misery is a relevant one and is a question which is worth asking, even though it may be incredibly uncomfortable to ask such a question. And as Bertrand Russell argued, rather than being an “expansive” institution which enables both happiness and self-actualization, modern marriage has turned out to be a “restrictive” institution that has fostered fear and unhappiness more than anything else:
“All expansive passions are better than restrictive ones. And marriage being based as it is mainly on jealousy, being rooted in jealousy as the reason for its existence – not the only reason but the reason for marriage as we have it here and now, the reason that distinguishes marriage as it is from marriage as it might be in so far as it is rooted in jealousy, to that extent it is a restrictive institution and a bad institution and to that extent it is the cause of unhappiness, and not only of unhappiness but of limitation of sympathy, lack of receptiveness, lack of new thought, lack of intelligence, lack of initiative, all kinds of spiritual and mental death that comes from the fact that a man’s life and a woman’s life are dominated by fear, by the fear that at any moment if you let yourself go you may do something you shouldn’t do.”
“That attitude of fear is not the sort of attitude with which a man or a woman should go through life. We want something more adventurous, more fearless, more bold. I think that is the root cause of what I should regard as the failure of modern marriage.”
Thus, modern marriage – both from a legal and personal standpoint – is more about control and restriction rather than about freedom and expansion. The control and restriction are then amplified and exacerbated by the fact that many of the laws pertaining to modern marriage are artificial and man-made rather than natural and scientific.