An Introduction to Islamic Law (13 page)

The formal legal aspect of such situations might well be augmented by another social aspect. Obviously, the ties of the wife/woman with her original family were not, upon marriage, severed, and her parents, brothers and sisters continued to watch closely as the marriage of their daughter/sister unfolded. It was, after all, the parents of the wife who had usually arranged the marriage, and who were at least to some extent responsible for it as well as for the well-being of their daughter. If the marriage failed, they not only had to deal with such a failure in the public space, but also had to “take back” their daughter, with all the economic and other consequences this “taking back” might entail. Their interest in the success of their daughter’s marriage explains the close scrutiny many families exercised (and still do) to prevent abuse by the husband of their daughter (including such measures as the beating of the abusive husband by the wife’s brothers). Unlike the present situation of many women who, in the nuclear family of today, must fend for themselves, women in earlier Islamic societies continued to have the psychological and social – and when necessary economic – backing of their original families. This obviously did not prevent abuse in all cases, but it did contribute significantly to its reduction. However, when all attempts had failed, the wife’s original family, often with the collaboration of the husband’s own family, would exercise the necessary pressures to bring the marriage to an end, before the
qadi
or not
.

Finally, a few words about women and
property rights are in order. Making up about 40 percent of the real estate dealers in some cities, women regularly approached the court to register their sales and purchases, recording in this way the fact that they were heavily involved in transactions related to house transfers. As court litigation and registries show, women owned both residential and commercial properties, mainly rent-earning shops. They often owned their own houses, and frequently jointly purchased houses with their husbands, during, but also before, the marriage. As already mentioned, when they were repudiated by their husbands, they often bought the latter’s share in their matrimonial house with the very money their husbands owed them as a result of divorce.

Women were also participants in one of the most powerful economies in Muslim lands, namely, the real property dedicated as
waqf
, which, by the dawn of European colonialism, constituted between 40 and 60 percent of all real property. Except for the largest endowments, usually established by sultans, kings, viziers and emirs, many of the founders of
medium-size and smaller
waqf
s were women. They often founded and managed endowments alone, and to a lesser extent they were also co-founders, along with males and other females. A relatively impressive number of
waqf
s were established by manumitted female slaves associated with the political and military elites, and these too established
waqf
s independently as well as with their (former) masters (a fact that attests to the financial, and even political, power of female slaves).
Waqf
s of modest range appear to have been established by men and women in equal numbers. Their participation in the important
waqf
economy began early on, and steadily increased throughout the centuries. By the eighteenth century, women constituted between 30 and 50 percent of
waqf
founders. In some places, there were more women establishing endowments than men. In certain cities, a significant number, and at times more than half, of the endowments established by women were public, dedicated to religious and educational purposes or to caring for and feeding the poor. And like men, most women creating endowments purchased their properties for this purpose.

It is only reasonable to assume that more women benefited from
waqf
endowments as beneficiaries than there were women who founded such endowments. Quantitative evidence of the proportions of men and women who were
waqf
beneficiaries has still to be tabulated, but the general evidence thus far points to well-nigh equal numbers. The theory that the juridical instrument of
waqf
was used to deprive females of their entitlements to inheritance no longer stands, for it appears, to the contrary, that the
waqf
was resorted to in order to create a sort of matrilineal system of property devolution. Equally important, however, was the crucial factor of avoiding the partition of family property (which Quranic inheritance tended to do), this frequently having harmful economic effects that were curbed by having recourse to the
waqf
instrument. It should therefore not be surprising to find many
waqf
deeds that allocate to the beneficiaries the same proportional entitlement to the estate as the Quranic shares.

One historian has found that in eighteenth- and nineteenth-century Aleppo women were disadvantaged as inheritors in less than 1 percent of the 468
waqf
deeds she examined.
⁵
Women generally designated more females than males as beneficiaries, while some 85 percent of men designated their wives and/or daughters, a situation that obtained in
sixteenth-century Istanbul as well. The same pattern occurs with regard to rights of residency in the family dwelling of the founder. The great majority of
waqf
deeds – in Aleppo, Istanbul and elsewhere – did not discriminate against females, nor did they limit their rights in any way. But when they did, the restriction did not preclude the right to live in the house until marriage, or to return to it when they became orphaned or divorced. Nor did preclusion apply to female descendants, a fact that “left the door open for married women and their spouses and their offspring to claim their rights to live in the house.”
⁶

Women were also deemed to be as qualified as men in their capacity as managers of endowments, an influential administrative and financial position. Although there were more men than women performing this function, a large number of women appear as administrators of
waqf
s established by their fathers, mothers, grandparents and distant relatives. In the eyes of the court too, women manifestly had precedence over younger males as administrators. And like men, women reserved for themselves the right to be the first administrators of their own endowments. They also reserved and used the right to sue against infringements of
waqf
rights, on behalf of themselves as well as others
.

In sum, Muslim women were full participants in the life of the law. As one historian has put it with regard to Ottoman women, they “used their right of access to the courts to promote their interests, in which a manumitted slave could restrict the claim of her past master to her estate, where a farm woman could challenge the claim of a creditor upon the expensive livestock she had purchased, where a widow could assert her priority right to buy her husband’s share in real property, and where a woman traveling alone from one village to another could charge a police officer with obstructing her path.”
⁷
But if the law depended, in its proper functioning, on the moral community, then women – just as much as men – were the full bearers of the very morality that the law and the court demanded. And as moral denizens, or denizens who aspired to the power that was generated by moral character, they engaged in the law, losing and winning on the way. As participants in the legal system, they developed their own strategies, and drew on the moral and social resources available to them. They no doubt lived in a patriarchy, but the inner
dynamics of this patriarchy afforded them plenty of agency that allowed them a great deal of latitude. That “Islamic modernity” has often proven to be oppressive of women, as we shall see in
chapter 8
, cannot take away from the fact that for a millennium before the dawn of modernity they compared favorably with their counterparts in many parts of the globe, particularly in Europe
.