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July 22, 2008 Special Dispatch No. 1995

Libyan Reformist Muhammad 'Abd Al-Muttalib Al-Houni: "Has the Bastille of Virginity Not Yet Been Demolished?"

July 22, 2008
Libya | Special Dispatch No. 1995

In an article published July 2, 2008 on the Arab liberal website www.alawan.org, Dr. Muhammad 'Abd Al-Muttalib Al-Houni, a Libyan lawyer, businessman, and liberal author residing in Europe, wrote against the decision issued by a court in the northern French city of Lille annulling a marriage after the husband found that his wife was not a virgin on their wedding night. The court decision set off a controversy in France, and the French justice minister has called for an appeal of the Lille court's ruling.

In his article, titled "Has the Bastille of Virginity Not Yet Been Demolished?" Al-Houni argues that the court's decision is a throwback to the Ancien Regime, and that it contradicts the moral and legal foundations of the French Republic and of modern Europe.

The following are excerpts:[1]

"[T]his Judgment... Is a Moral Failure of the First Order"

"I would like to comment from a legal and political point of view on the judgment issued by a court in Lille, France. This was a judgment annulling the marriage of a man to a young woman because she lied to him about her virginity. The court's justification for its annulment of the marriage was that the assent of one of the parties, namely the husband, was flawed, [as] he entered the marriage under the influence of an objective error upon which his consent to the finalization of the marriage was based.

"This judgment issued in the name of the secular French Republic could be considered a serious retrogression from France's historic modernist progression, since it represents a return to the judicial regime that broadened the scope of the judge's personal discretionary powers, and in which the judge possessed, as it were, legislative authority; he invents legal models not present in the civil code, condemning what the law does not condemn and sanctioning what it does not sanction.

"This judgment is reminiscent of the Ancien Regime, when the courts in France, in similar incidents, issued various judgments based on these broad discretionary powers. This was the case, for instance, in the tragedy of the trial of the Calas family in the mid-18th century, which was the high-water mark of degradation of legal judgments in that era. Voltaire wrote a book on this case, the Treatise on Toleration, on the Occasion of the Death of Jean Calas.

"But this judgment issued by the court in Lille is not merely a legal and juristic error. Rather, it is a moral failure of the first order. Marriage is a contract, but one of a special nature. Inasmuch as it is a contract, it has basic elements and conditions, and it becomes null if one of its elements is void.

"But the French judge looked upon this contract as based on mutual consent on the issue of the woman's body, and considered the hymen to be part of the object at issue in the contract…

"The judge considered the hymen a thing of such importance that its absence constitutes proof that the merchandise – the woman's body – was fraudulent, thus requiring the annulment or abrogation of the contract. Put in a different way, the intention of the 'purchaser' was deemed defective as a result of the 'seller's' (the woman's) concealing a fundamental element [regarding] her body."

"[T]he Marriage Contract Is Based on Partnership... and Not on the Purchase of a Woman's Body"

"Indeed, the maidenhead is a part of the woman's body; however, the marriage contract is based on partnership and the choice of a spouse, and not on the purchase of a woman's body and its components.

"What happened in this decision? The structure of commercial contracts was applied to the marriage contract, despite its being a partnership [and not commerce]. The French court did not distinguish between a marriage contract and a contract to buy an automobile, or real estate, or any other material object.

"In the French Republic, the issue of virginity cannot in any way be considered an element or condition whose absence invalidates a marriage contract. Modernity and its accrued legacy of legal theory made clear to us that what is subject to denial or affirmation, approbation or censure, criminalization or permission – whether from the legal standpoint or the moral one – is human behavior, [that is,] action or inaction. [All this] is not applicable to a person's state of being, since that would demolish all of the achievements of legal thought and philosophy of law from the Renaissance to our day.

"Let us put forward a hypothetical case brought before this court involving the marriage of a French woman and a Muslim man, where the woman has discovered that her husband was circumcised, contrary to what he claimed before the wedding. Would the court rule for annulment of the marriage contract because of the existence of the fraudulent claim regarding the merchandise (the body of the man)? And if a case was brought before this court by an employer who wanted to void an employment contract between himself and an employee, because the documents he submitted stated that he was white and it turned out that he was colored, or the documents said he was Christian and it turned out he was Muslim – would the court rule here as well to annul the contract?

"The plaintiff's attorney states that the husband entered into this union under the influence of an objective error. He invokes a precedent in French law, where a marriage was annulled because the wife discovered that her husband was a former prisoner. But this [analogy] is fallacious, since [in the case invoked as a precedent] the concealed attribute that was the cause for the annulment of the marriage did not relate to the individual's state of being, but rather to criminal behavior issuing from an act of commission or omission punishable by law.

"According to this analogy, it would be logically necessary for the French parliament to pass a law making it illegal for a woman to lose her virginity through any means other than legally sanctioned coitus, as the language of the Islamic shari'a calls it. [Apparently] that would be just fine in this age of global retrogression."

"If These Grave Errors Continue… We Will Be in Need of Another Enlightenment in Europe Itself"

"With this ruling, the French judiciary has brought the legal and ethical system in France to a sorry state. If these grave errors continue in judicial practice, it may become the case that French law will not apply [equally] to all the French, but [rather that] different laws will apply, according to difference of religion, gender, and perhaps of color. This sacrifices the idea of citizenship and the principle of applying the law to all without regard to distinctions among citizens.

"This incident is not the first of its kind in France. We have observed that the French state has gone far in discriminating among its citizens. The evidence for this is the law's turning a blind eye to Muslim men who marry more than one woman, while continuing to punish Frenchmen of European origin who do so. If this violation of the laws of the French Republic and of the achievements of modernity continue, we will be in need of another Enlightenment, and we will have to realize that the stage of Enlightenment has not yet been completed."

Endnote:

[1] www.alawan.org, July 8, 2008.

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