Marriage and Slavery in Early Islam

MARRIAGE AND SLAVERY IN EARLY ISLAM

q

MARRIAGE AND SLAVERY IN EARLY ISLAM

K
ECIA
A
LI

H
ARVARD
U
NIVERSITY
P
RESS

Cambridge, Massachusetts London, England

2010

Copyright © 2010 by the President and Fellows of Harvard College

All rights reserved

Printed in the United States of America

Library of Congress Cataloging-in-Publication Data

Ali, Kecia.

Marriage and slavery in early Islam / Kecia Ali.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-674-05059-4 (alk. paper)

1. Marriage (Islamic law) 2. Concubinage (Islamic law)
   

   3. Slavery (Islamic law) I. Title. KBP542.35.A45 2010
   

   297.5
   ′
   77—dc22 2010000937
   

   Contents
   

   Acknowledgments vii
   

   Introduction 1
   

   1. Transacting Marriage 29
      

   2. Maintaining Relations 65
      

   3. Claiming Companionship 97
      

   4. Untying the Knot 133
      

   5. Marriage and Dominion 164
      

Conclusion 187

Notes 199

Index 253

Acknowledgments

Numerous people and institutions have helped me during this project. I have benefited tremendously from correspondence and conversations with Karen Bauer, Jon Brockopp, Ayesha Siddiqua Chaudhry, miriam cooke, Vincent Cornell, Mohammad Fadel, Havva Guney-Rudenbacker, Ahmet Karamustafa, Bruce Lawrence, Ebrahim Moosa, Sara Omar, Kevin Reinhart, Behnam Sadeki, Omid Safi, Laury Silvers, Amira Son- bol, and others too numerous to name. My colleagues in the Feminist Sexual Ethics project at Brandeis University involved me in compara- tive discussions; Bernadette Brooten and Gail Labovitz were especially vital. The two anonymous readers for Harvard University Press were also extremely helpful, as was my editor, Sharmila Sen. Collectively, these people have saved me from many errors of fact and interpreta- tion, but none of them bears any responsibility for remaining mistakes or my insistence on particular views.

I was fortunate to spend a year (2003–4) as a visiting scholar at the Harvard Divinity School’s Women’s Studies in Religion Program. Di- rector Ann Braude and the other visiting scholars—Ana Maria Bide- gain, Kelly Chong, Sharon Gillerman, and Hanna Herzog—read and commented on early versions of two chapters; my HDS seminar stu- dents read another and made helpful comments. I continued to work on the project at Brandeis University, where I held the Florence Levy Kay postdoctoral fellowship from 2004 to 2006. The latest revisions were completed at Boston University. I would like to thank my col- leagues in the Department of Religion for their support and the Boston

University Humanities Foundation for providing me with a grant to cover the cost of Widener Library privileges.

Material from Chapters 1, 4, and 5 was first presented in lectures at Brandeis University, Harvard University, Princeton University, Stan- ford University, and the 1999 and 2008 Annual Meetings of the Ameri- can Academy of Religion. I am grateful for the productive discussions that ensued.

My family has lived with this project for years. I would like to thank my children, Shaira, Saadia, and Tariq, for their understanding and enthusiasm, but that would be overstating the case; tolerance more accurately captures their attitude. They simply do not see the point of writing anything that has no dragons, sharks, princesses, wizards, fair- ies, vampires, or alien civilizations, although they do admit that it is kind of neat to see Mom’s name on the cover of a book. Finally, it seems fitting that a book about marriage be dedicated to my husband: Shahan, this is for you.

MARRIAGE AND SLAVERY IN EARLY ISLAM

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Introduction

W
HILE
writing this book, I have had numerous opportunities to explain its subject. One of my less successful attempts occurred several years ago, when an Algerian acquaintance enquired politely about my prog- ress, adding, “Remind me what it’s about.” I answered that I was writ- ing about marriage, divorce, and the reciprocal but gender-differentiated obligations of husbands and wives in ninth-century Islamic jurispru- dence. I was focusing, I added, on three major issues: first, diversity of opinion in early legal thought; second, the influence of hierarchical social structures, including slave ownership, on the jurists’ visions of mar- riage; and third, the vital role of polemical exchange in the refinement of legal doctrine. As I finished this summary, we were joined by a col- league of his, another North African Muslim. “Guess what?” said the first man enthusiastically, drawing the new arrival into the conversa- tion. “She’s writing a book on women’s rights in Islam.”

This exchange—funny only in retrospect—involved a series of mis- communications. My own inept, jargon-filled explanation deserves most of the blame. Incomprehensibility plagues academics. We have special- ized knowledge that bears on contemporary topics but tend to be lousy at communicating it to people not initiated into our disciplinary myster- ies. Although the time period with which this book is concerned is re- mote, its subject matter is of vital interest today, when women, gender, and Islamic law occupy center stage in debates about modernity and reli- gious authenticity across the globe. I failed to show how my treatment of marriage, sex, and interpretive authority resonates deeply with contem- porary discussions. But not all the blame for the misunderstanding was

mine. Common habits of thought make it difficult for people to hear nu- ances, no matter how clearly expressed. Intricate ideas shrink to bite-sized platitudes. An analysis of gender and hierarchy in family and society dwindles to a simple matter of women’s rights. An historical description of a particular era in Muslim legal thought morphs into a statement about a monolithic entity called Islam. Pernicious tendencies toward sweeping generalizations seem to increase exponentially when the subject involves both women
and
Islam.

Fortunately, the situation is better among scholars than among the general public. Though bestselling books on women and Islam tend to- ward sensationalistic memoirs or journalistic exposés, recent decades also have witnessed a spectacular surge of relevant academic studies, especially in law. We now have an impressive understanding of women’s transactions (personal and proprietary) in much of the premodern Mus- lim world, especially the Ottoman Middle East, for which abundant court records and fatwa compilations exist.
1
Leslie Peirce’s microhistory of a year in the sixteenth-century life of the Ottoman provincial court of Aintab notes, “Focusing on women at court has the benefit of highlight- ing the gap between normative prescription and actual practice—or perhaps, more accurately, highlighting the complicated relationship between the two.” In the courts, actors including judges and litigants draw from available resources, which include “official” jurisprudence as well as customary practice, to arrive at the most favorable outcome. Courtroom observation by legal anthropologists across twentieth-century Muslim societies supplements historians’ archival work. By focusing on the court as a sphere of negotiation and on the variety of resources that actors of all types brought into the court, historians such as Peirce and anthropologists such as Ziba Mir-Hosseini and Susan Hirsch are able to make women’s voices—filtered and mediated though they may be— appear in a way that is nearly impossible with the textual sources of legal manuals and fatwas.
2
From Africa to Indonesia, Muslim women are not the silent victims of oppressive patriarchal regimes but active participants in their families and societies. Women own and manage property, claim and sometimes win custody of children, seek divorce and often get it, and generally stand up for themselves. Judges uphold female rights within the context of broader patriarchal patterns. Both in courtrooms and in daily life, women have managed to negotiate lee- way in a variety of spaces.
3

One major way in which studies of law have proceeded has been to “compare doctrine with the actual practice of the court.”
4
As one scholar discussing scriptural and legal texts notes, “Social patterns were in great contrast to the ‘official’ picture presented by these ‘formal’ sources.”
5
Studies often juxtapose flexible and relatively fair court outcomes with an undifferentiated and sometimes harshly patriarchal textual tradi- tion of jurisprudence. We are shown proof of “the flexibility within Is- lamic law that is often portrayed as stagnant and draconian.”
6
Given the shift within women’s studies over the last decades of the twenti- eth century—from concern with documenting oppressive structures to retrieving evidence of women’s agency and resistance—it is not sur- prising that the record of practice has been more attractive than the comparatively elitist and androcentric jurisprudential discourse.

As scholars emphasize diversity and contingency in contemporary and historical applications of the law, though, they often overlook diver- sity of doctrine within and between normative texts. At a very basic level, the existence of contradictory positions within the realm of juris- prudence considered mutually orthodox challenges the simplistic equa- tion of “Islamic law” with revealed law. Instead of supporting a model whereby the jurists merely discover the
shar
i
®
a
—and sometimes disagree on minor points—close attention to jurisprudence reveals significant differences on important topics. At a minimum, one conclusion of this book, salient to Muslim reformers, is that Islamic legal rules are to a sig- nificant extent the product of human and therefore fallible interpretive processes, and thus are susceptible to reform. Human reason and agency have been involved deeply in the production of religio-legal rules, includ- ing those governing marriage and divorce. This is, as one early reader of this manuscript pointed out, jejune for scholars of Islamic legal history, but may well be a new idea for lay Muslims and others for whom Islamic jurisprudence equals
shar
i
®
a,
which is understood as immutable Divine law. Drawing this connection is of vital importance given the widespread appeals to
shar
i
®
a
in Muslim contexts today.

Revivalist groups call for the implementation of
shar
i
®
a
as the sine qua non of a truly Islamic society. But these contemporary appeals to reinstate
shar
i
®
a
involve “a grossly exaggerated sense of the practical ap- plication of Shari
'
a as a comprehensive, self-contained and immutable normative system in the pre-colonial period.”
7
Despite the conceptual importance of
shar
i
®
a,
“most premodern Islamic states maintained two

or more parallel legal systems.”
8
Scholars and rulers alike were less concerned with the purity of the legal system than its overall success at keeping order and ensuring a reasonable approximation of justice. The jurists were charged with constructing from the raw material of scrip- ture, prophetic precedent, and (in interpersonal matters) local custom a set of regulations that would guide the behavior of individual believers and serve as a basis for adjudication by duly constituted authorities. From its inception, the implementation of law involved a series of com- promises between secular, state-generated law (
siy
a
sa shar
®
iyya
or, in Ottoman terms,
kanun
) and religiously grounded jurisprudence
(fiqh).

Jurisprudence, then, is not reducible to law in its modern Western sense. It most closely parallels rabbinic law,
halakha,
in both scope and process. As with rabbinic discourse, Muslim jurisprudence was an open rather than a closed system. Jurists expounded, explained, debated, and justified their stances on legal matters both mundane and lofty, social and ritual. Opinions and arguments continued over time, and minority views remained part of a canon, available for later thinkers to draw on. Issues were seldom fully resolved. It remained fully permissi- ble for jurists to derive fresh solutions to legal problems based on inde- pendent recourse to foundational texts
(ijtih
a
d).
Of necessity, however, this innovation coexisted with a routine reliance on precedent. The need for stability and predictability meant that advisory legal opinions (fatwas) and judicial verdicts were based largely on dominant views within the legal schools.
9

In the aftermath of European colonialism, legislative codes have supplanted jurisprudence as the primary fount of legal doctrine in nearly every nation with a Muslim majority.
10
There is no pretense of religious legitimacy for most areas of law such as commerce, crime, or interna- tional relations. Marriage and family, however, remain regulated by so- called personal-status laws. With the rise of political Islam, these laws have become an ideological battleground, with women’s rights at center field. Inheritance, marriage, divorce, and sexual crimes have been the chief arenas in which claims are staked.
11
Even as its links to the histori- cal tradition of jurisprudence become tenuous, the ideological heft of Is- lamic law has increased. Politicians and activists have fixated on women’s status as a barometer of religious authenticity. Appeals to
shar
i
®
a
invoke a timeless, authentic past, even as the content and implementation of the laws in question diverge considerably from earlier regulations. As Judith