on Polygamy in Indonesia: Where's the Harm?

Following up from the last post. On Islam and the laws and stuff, this is just a backgrounder and by no means complete, but should be a good starting point. Do share if you have anything to add.

Polygamy is an option left open by the scripture – a man may have up to four wives – but with very detailed (and limiting) conditions.

The Quran specifically calls for equal time and responsibility, designed mostly for nomadic tribes travelling desserts months at a time. Most Moslem scholars agreed the Text should be interpreted to discourage: it is practically impossible to fulfil the stated conditions. This is an opinion shared by many scholars across history.

Tabari, a prominent commentator of the Quran from eighth century, quoted several interpretations of (4:3) with an unequivocal approval to the rights of women: “…you must apply the same careful consideration to the interests and rights of the women you intend to marry.” It was clear that while the historical context was relevant, the detailed conditions apply regardless.
The verse he was agreeing to, directly from the Quran, (4:3), says: “If you have reason to fear that you might not be able to treat them with equal fairness, then [marry only] one,” making plural marriages possible only in exceptional cases under exceptional circumstances.
The Book then moved on in (4:20) to indicate clear preferences for monogamous marriages and explicit in not allowing mistresses and concubine “…and not taking unto themselves secret love-companions.” (4:25). Similar verses are found everywhere else.

In fact, when celebrity scholars Aa Gym took a second wife, his religious credentials plummeted and his career inflamed. This was solely a public response, Aa Gym didn’t break any law and he obtained full, public consent from the first wife, there was no institution grounds to ‘impeach’ him (secular or otherwise).
Yet, the debate over Aa Gym’s second marriage took to an unreal, morally obsessed level Indonesia just as America did in the Lewinsky affair. Most Indonesians would’ve loved to try him with perjury; except clerics and politicians here are protected under the new and extended executive power privileges.

Islam defines matrimony as a social contract and not an ecclesial ceremony: one needs only the consent of both the groom and the bride to be married, provided that both are from suitable ages, requiring neither clerics nor secular officials to officiate.

It is clearly sanctioned by the religion, but marriage is a consensual act of an individual, an agreement to enter a mutual contract. Some schools of Islam required no witnesses so long as both parties agreed and of suitable age. Matrimony is to be respected by the parties involved so long as they remain within the acceptable bounds of society. Islam arrived in the pre-existing societies of Arabian tribes (commonly practicing polygamy) and introduced only the social safeguards: rules on incest, slavery, maximum number of wives, adulteries, etc.

In religious institutions, house rules apply. Jews are notoriously picky about sanctioning inter-religions matrimony. Indonesian law mandates the couple must be of the same religion. Iran has the same and requires two witnesses for a divorce. Indonesian wedding requires two witnesses and a cleric. Iran divorce system heavily favours women and Indonesian does men. Both prohibit polygamy without consent of the other wife. In neither case, polygamy violated no fundamental rights.

Notice that the matrimony laws assume an expanded role in institutionalised religion (as opposed to textual traditions), mostly the product of a secular state in assuming its administrative duty. England has a beth din court to deal with Orthodox Jew marriages and the Archbishop of Canterbury recently floated the idea for more religious courts.
Israel, Iran and Indonesia all keep separate court systems to deal with matrimony, funeral and dietary in a workable compromise to comfort the faith believers. In Indonesia, the second marriage requires a court permission.
Both Indonesia and Israel are rabidly secular democracies with strong influences of the conservative.

It would be too easy to then point at the flaws at the enforcement level – that is since the gov’t ratified marriage as law; it is therefore mandated to enforce it (as Amitz argued previously). This is misleading.

Marriage is a civil matter in most jurisdictions (as opposed to penal): the state really only take sides if there is a complaint. A casual observation would indicate that the perceived failures of enforcements happen only in jurisdictions with dysfunctional civil laws. The other extreme illustrates the problems with tort laws in the litigious US legal system. (note: perhaps we could file a class action in behalf of second wives?)

An argument to say that either parties was disfavoured by the law merely reflects on bigger issues endemic in the civil court; not a discriminatory problem exclusively caused by the faults in a particularly narrow area of polygamy. Interestingly, religious courts in Indonesia actually perform better than its secular counterparts (in measures such as transparency, accountability, court efficiency, etc).

As any legal scholars would tell you, criminalizing a civil matter is a headache, even within the limited boundary of a legal argument. It calls for an imminent harm to society, which is not exactly apparent in the case of polygamy in Indonesia.

So I’m back to my initial question, what exactly is the harm of polygamy and, well, why should we move to ban polygamy?.

Of course, there is always a question whether the government really should be getting involved in the marriage business in the first place. Why not abolish marriage altogether, leave it for the temples to take care.

Is it time to make a case for abolition of marriage? Boy, would I love to tackle that one, but that’s an issue for another day.