An Introduction to Islamic Law (12 page)

Before we conclude this chapter, we must say something more about women and law. Our sources, which largely consist of court records, tell us little about the social background of the women involved in court proceedings, how they were viewed by the individual members of their social group, how they were perceived and positioned in the larger group making up their immediate communities, and, more importantly, how influential and disadvantaged women differed from each other in reaping the benefits of the law. It is clear, however, that
personal rectitude played a decisive role in legal proceedings, a fact that translated into decisions and injunctions in favor of women who themselves were of such a character or supported by female witnesses seen to have an equally elevated
moral character. If judicial evidence is the thread by which justice hangs, then rectitude and moral character are the filaments from which the thread is made. And rectitude and morality were no less the province of women than they were of men
.

The pervasive legal conviction that women possessed full legal personality largely explains the fact that women enjoyed as much access to the Muslim courts as did their male counterparts. Like men, they approached the courts not only with prior knowledge of their rights, but with the apparent conviction that the courts were fair and sympathetic, and operated with the distinct inclination to enforce their rights. They often represented themselves in person, but when not – and this being typically
in the case of women (and many men) of the higher classes, including non-Muslim women – they normally had a male relative, a servant or their business manager represent them. By all indications, when they approached the court in person, they did so on the same terms as did men, and asserted themselves freely, firmly and emphatically. The courts allowed for a wide margin of understanding when women were assertively forthright, giving them ample space to defend their reputation, honor, status and material interests. They approached the court as both plaintiffs and defendants, suing men but also other women. Muslim women sued Christian and Jewish men and women, and these latter sued them in turn (though litigation between religious denominations appears to have been substantially less frequent than within each respective denomination). Manumitted female slaves took their former masters to court as often as they sued others for defaulting on a debt owed to them, or for a breach of pecuniary or other contracts. Women sued for civil damages, for dissolution of their marriages, for alimony, for child custody plus expenses, for remedies against defamation, and brought to trial other women on charges of insolvency and physical assault. But women were also sued by men on charges of physical abuse.

It is certainly true that Islamic law, reflecting the social make-up of the great majority of Islamic communities, promoted gendered social and legal structures. Equally true, as some historians have observed, is the fact that “the court language privileged the social status of men and Muslims over women and non-Muslims.”
⁴
But nothing in this language or in the court itself could diminish the rights of women or even discourage them from approaching the court, much less take away from them the full rights of property ownership, of juridico-moral rectitude or of suing whomever they pleased. This was equally true of non-Muslim women, who, in the language of the court, were doubly underprivileged by the facts of being women and non-Muslims. Yet their rights, as well as their actual legal and social powers, were no more disadvantaged than their Muslim counterparts.

It is also true that in legal doctrine a
woman’s testimony, in most areas of the law, carried half the weight of that of a man. However, we have few data on the actual effects that such juristic discrimination had on the actual lives and experiences of women. How, in other words, did this evidentiary rule affect their marital, familial and property rights – among
others – and, equally important, how were these effects perceived and interpreted by Muslim women themselves? Judging by the available evidence, the overall and relative effect of such discriminatory evidentiary rules certainly compares not unfavorably to the experience of their contemporary European counterparts.

Evidence of the innocuousness involved in women’s diminished evidentiary value is the glaring fact that women appeared in court as plaintiffs or defendants in every sphere of legal activity, ranging from criminality to civil
litigation
. Although the majority of cases bringing them to the court (admittedly not the only province of law) were economic in nature, they were active on several other fronts. It may even be said that courts often preferred women as guardians of minors, asking (and paying) them to manage the
orphans’ financial affairs and the wealth they inherited. They were no less hesitant to sue on behalf of these minors than they were with regard to their own farms, agricultural tools, weaving equipment, livestock and slaves.

Much
litigation about property related to lapsed
divorce payments and inheritance settlements. In either case, the common presence of women in court, mostly as plaintiffs, attested to the relatively advantageous positions in which they stood. Divorce, as the jurists understood very well, and as legal practice testifies, was a very costly financial enterprise for the husband, let alone that in many cases it was effectively ruinous (a fact which may also explain the rarity of polygamy). Upon divorce, the ex-wife was entitled to maintenance for at least three months, delayed dower, children’s maintenance, any debts the husband incurred to her during the marriage (a relatively frequent occurrence), and if the children were young, a fee for nursing. And if the husband had not been consistent in paying for marital obligations (also a relatively frequent occurrence), he would owe the total sum due upon the initiation of divorce
.

In this context, it must be clear that when
women entered marriage, they frequently did so with a fair amount of capital, which explains why they were a source of lending for many husbands and why so many of them engaged in the business of money-lending in the first place. In addition to the immediate dower and the financial and material guarantees for her livelihood, the wife secured a postponed payment, but one that she could retrieve at any time she wished (unless otherwise stipulated in the contract). But equally significant was the trousseau that she received from her parents, customarily consisting of her share of her natal family’s inheritance paid in the form of furniture, clothing, jewelry and at times cash.

Many women, before or during marriage, were also endowed with a
waqf
portion, giving them further income. Whatever the form of the trousseau and the total wealth they could accumulate, women were entirely aware of
their exclusive right to this wealth, and understood well that they were under no obligation to spend any portion of it on others or even on themselves. They apparently spent their own money on themselves only if they chose to do so, since such expenses as pertained to sustenance, shelter and clothing (in the expansive meaning of these terms if the husband was prosperous) were entirely his responsibility, not hers. In other words, unlike that of husbands, the property of wives was not subject to the chipping effect of expenditure, but could instead be saved, invested and augmented
.

Considering the unassailability over the centuries of these rights – which on balance availed women of
property accumulation – it is not surprising that, in the historical record, unilateral
divorce by the husband appears to be less common than
KHUL
, the contractual dissolution of marriage (where the wife surrenders some of her financial rights in exchange for divorce). The relative frequency of
khul
in Istanbul, Anatolia, Syria, Muslim Cyprus, Egypt and Palestine has been duly noted by historians. It is a phenomenon that explains – in this context – three significant features of Muslim dissolution of marriage. First, while the husband could divorce unilaterally, there was also a “price” that he paid for this prerogative. In other words, the average husband was constrained by hefty financial deterrents, coupled with legal and moral deterrents installed by the law as well. Second, the husband’s unilateral divorce in effect also amounted to a one-way transfer of property from the husband to the wife, beyond and above all that he was – for the duration of the marriage – obliged to provide his wife by default. In fact, an important effect of this transfer was the fact that many repudiated women purchased the husband’s share in the matrimonial house, funneling the divorce payment due to them toward such a purchase. Third,
khul
, within the economic equation of Muslim marriages, was in a sense less of a depletion of the woman’s property because the payment by the wife was usually the delayed dower her husband owed her, plus her waiting period allowance. This was so typical that the juristic manuals reflected this practice as a normative doctrine. The point, however, remains that it was the very financial promise made by the groom that was used as the bargaining chip for
khul
.

Khul
, a means by which a woman could exit an unhappy marriage, provides an excellent context to assess
domestic violence against women and other causes of their marital discord. Because they had fairly easy access to the courts, unhappy wives had the option of addressing themselves to the
qadi
, who would assign officials of the court to investigate the abuse or other harm that made these women’s marriage unbearable. If abuse was proven, the court had the power to dissolve the marriage, as it often did. The law also allowed the woman the right to self-defense,
including, under certain circumstances, the killing of an abusive husband. But if the husband was not at fault, a wife who found her marriage unbearable could at least dissolve it by
khul
.