Marriage and Slavery in Early Islam (31 page)

Doctrinal disagreements on a variety of issues, including some re- lating to the rights and obligations of a male slave, persisted. A male slave’s consent to marriage continued to provoke disagreement, as did questions about maintenance of a married female slave. The husband’s sole authority to dissolve his marriage unilaterally, however, was not something on which formative-period Sunni jurists could agree to dis- agree: the husband’s right to unilateral divorce was a crucial defining element of Muslim marriage. Slave husbands’ power to exercise divorce rights without possessing or controlling assets clearly distinguished marriage from property transactions. Likewise, the fact that the hus- band of a female slave retained his control of the marriage tie even while another owned her as commercial property means that one can- not define their marital relationship unproblematically as “ownership.” Yet the centrality of the husband’s right to divorce was parallel to the slave owner’s control over manumission. Ironically, because the jurists defined marriage for enslaved persons as being immune (once estab- lished) from the interference of property owners, they vested analogous power in the husband who—whether himself enslaved or married to a slave—found himself with the right to unilaterally sever the legal tie joining his wife to him.

A male slave’s diminished legal capacity as compared to that of a free man meant less autonomy and control over his own marital des- tiny. Yet once validly married, a male slave became, in relation to his wife, simply a husband. His continued enslavement did not weaken his

marital authority. He alone could divorce his wife by
t
al
a
q;
his consent was needed for
khul
® divorce. Once married, a male slave gained all of the rights as well as (most of the) duties associated with the role of hus- band. Though he was
maml
u
k,
“owned,” by his master, a slave was still
m
a
lik,
“owner,” of the marriage tie. In the case of slave and free, or male and female, whatever equality or inequality existed between the two types of persons before or outside of marriage was irrelevant inside marriage.

Becoming husbands allowed male slaves to act autonomously in the sexual realm. Jennifer Glancy has asserted that for ancient Medi- terranean slavery “the male slave endured the permanent status of a boy, excluded from maturing into the category of manhood.”
96
For the Muslim jurists, by contrast, becoming a husband made a slave a man. Though debarred from marrying without permission, once married he could freely wield a husband’s powers. His manly status, though, per- tained only with regard to his wife. It did not change his relationship to his master, who retained rights over his labor and his domicile, or to his offspring, if any. Nor did it affect his ability to engage in property trans- actions. Control over divorce translated to control over sexual licitness; it was available to married men without regard to their legal status.

Conclusion

The centrality of unilateral divorce to legal constructions of manhood was probably less significant in practice than in theory. Rapoport, studying Mamluk society, concludes that “in spite of the value of repu- diation as a unilateral and patriarchal privilege actual divorce tended to be a much more balanced event.”
97
Numerous historical studies bear him out. Judges often worked around doctrinal restrictions to grant women divorces outside the parameters of the expected. And increas- ing women’s access to divorce as a matter of statute was one of the most significant objectives of twentieth-century legal reformers. But restrict- ing men’s exercise of
t
al
a
q
has proved more difficult; its place as a marker of authentic Islamic law remains. As this chapter has shown, in the ex- tension of divorce prerogatives to male slaves, the formative-period ju- rists cemented a model of marriage with male-initiated divorce as a nonnegotiable element.

As much as any imbalance of practical power, perceived inequities in divorce rules have also led reformist thinkers to tackle divorce as a way of approaching the larger question of Islamic law and women’s rights. Western Muslim feminists, themselves not subject to state- defined and enforced Islamic law, have grappled with the relationship between law and scripture on matters of divorce. Some have defended Islamic marriage and divorce laws as generally fair toward women, ex- cusing inequalities that manifest in jurisprudence as deviations from equitable scriptural provisions. In this view, the law that elite men in the early and medieval periods formulated reflected their socially con- ditioned views: “problematic jurisprudence was often the result of a misunderstanding or misapplication of the Qur
'
anic text resulting from cultural distortions or patriarchal bias,” Azizah al-Hibri asserts.
98
May- sam al-Faruqi concurs: “The limitations that ended up in Islamic law around women did not come from the Qur
'
anic text.”
99

Al-Faruqi’s argument merits more detailed consideration because it highlights a common failure to see the interconnected nature of jurisprudential concepts. She acknowledges some inequities in existing divorce law. However, she attributes them solely to bad interpretations of scripture, in particular of two verses (Q. 4:34 and 2:228). Al-Faruqi views Qur
'
anic pronouncements as the main substance of jurispruden- tial doctrine. This is necessary to her argument that Islamic law is re- quired for Muslim self-identity. If Islamic law is necessary, it must be legitimately Islamic. If it is to be legitimately Islamic, it must come from the Qur
'
an.
100
In her view, shared by most if not all Muslim feminists, only the Qur
'
an is above reproach as a source of “true” Islam. Given al- Faruqi’s approximation of the authority of the Qur
'
an to the authority of the law, problematic legal rules, such as the unequal rights to divorce granted to men and women, must be treated as minor problems, not systemic issues, if the legitimacy of Islamic law is not to be under- mined. She writes that

most of the problems of women arise from custom rather than Islamic law. There still are some problems, however, whether stemming from tradition or from the understanding of the jurists, that can be found in Islamic law in contradiction with the actual rulings of the Qur
'
an. An obvious example is that of divorce. A man is allowed to get a divorce without waiting for the period mandated by the Qur
'
an. The jurists

disapprove of it, but, as a matter of fact, allow it. By contrast, they limit the access by women to divorce by having them go through a court al- though the Qur
'
an does not have any such provision. . . . Hence, the law, in actuality, helped provide unwarranted privileges to men and restrict the rights granted to women by the Qur
'
an itself. . . . One must say, however, that these limitations are all a matter of juristic opinion rather than central tenets of the law. . . . Nor is there a problem with most parts of Islamic law—except those interpretations that clearly contradict the rights granted absolutely by the Qur
'
an itself.
101

Al-Faruqi here offers a defense of law. Where it errs, it is not with re- gard to “central tenets of the law” but only isolated provisions, the re- sults of “juristic opinion.” In her model, jurist’s assumptions about “the instability, ignorance, and fickleness of women” lead them to disregard scripture, which otherwise they apply clearly and faithfully.
102
Al- Faruqi perceives this as a problem of specific provisions rather than of the overall legal structure of marriage. She views the restrictions placed on women’s access to divorce, and the restraints lifted from men’s ac- cess to it, as isolated instances of faulty scriptural interpretation.

There are, though, two main problems with Faruqi’s critique, which fails to account for the complex process of juridical reasoning. First, who is to judge when something “clearly contradict[s]” the Qur
'
an? Traditional jurists would no doubt claim that their doctrines about divorce reflect fairly the relevant scriptural provisions. Second, and more significant, the juristic regulations on divorce are central to the jurists’ overall understanding of the marital contract as conveying to the husband a type of ownership or control
(milk)
over the wife and the marriage tie. Divorce is inseparable from the rest of the legal regu- lations surrounding marriage and its dissolution. It forms part of a sys- tem of interlocking spousal rights and duties.

The questions raised by al-Faruqi about the overall nature of mar- riage and divorce resurface in modern discussions of national legal re- form. Discussing the inclusion of a right to ®
i
s
ma
—which, in Egyptian marriage contracts, is the wife’s “right to divorce herself before the mar- riage registrar without recourse to the court”
103
—Mona Zulficar like- wise assumes a model of divorce that diverges in a very basic way from that of the formative and classical legal texts. The right of ®
i
s
ma
has been exercised since late Ottoman Egypt, though its origins in Hanafi doc- trine remain murky and deserve a full study. Zulficar concludes that “a

wife’s right to delegated divorce
(
®
i
s
ma)
is a legitimate right under the principles of Shari
'
a.” In her estimation, it makes perfect sense to in- clude such a condition in Egyptian marriage contracts, because “the legal effect of this condition is to confirm equal rights of termination for both the husband and the wife. This is a natural reflection of the contractual nature of the marriage contract. If a contract is concluded based on mutual consent, it is natural to require termination by mutual consent or provide for a unilateral right of termination by either party.”
104
Zulficar’s comments emphasize the notions of naturalness, contract, and consent. In her view, it is “natural” to assume that be- cause marriage is a bilateral contract, then divorce ought to be bilateral as well, or at least equally available to each spouse. Yet nothing could be further from the understanding of the early Muslim jurists, for whom marriage was a bilateral contract conveying unilateral control
(milk).
The next and final chapter explores the gendered nature of this
milk.

q
5

Marriage and Dominion

If a man is married to a female slave [belonging to someone else], then he purchases her, his purchase of her cancels the marriage, and he has sex with her by his [right of] ownership
(bi milkihi)
.

—
M
UDAWWANA

T
HE TERMINOLOGY
of
milk
saturates jurists’ writings. Phrases such as
milk amrih
a
(“control of her affair”) appear in the contracting of a mar- riage, and
taml
i
k
(“delegation of authority”) and
milk al-raj
®
a
(“posses- sion of [the right to] return”) in its dissolution. In these instances,
milk
signifies “control” or “authority”—or even “prerogative”—rather than “ownership,” as of commodity property
(m
a
l).
Elsewhere,
milk
denotes ownership, especially of slaves.
Milk al-yam
i
n,
or “ownership by the right hand,” refers to slave ownership, and a man’s
milk
over his female slave allows him, except when she is married to someone else, sexual access to her. The wide semantic range of terms derived from the root
m-l-k
creates an inherently ambiguous relationship between “control” in a marital relationship and “ownership” in a master-slave relationship, especially where sex is at stake. A man
yamliku
(exercises
milk
over) both his wife and his slave, and “it is the sense of possession or own- ership
(milk),
implied both in the relationship between a man and his female slave and a man and his wife, that makes cohabitation between the two lawful.”
1
The linguistic parallels facilitate, though they cannot entirely account for, a conceptual slippage between these modes of dominion.

What linguistic overlap initiates, analogy completes. Analogy oc- cupies the center of developing juridical discourse on marriage and slavery. Previous chapters have shown how analogies between the in- stitutions of marriage and slavery create parallel legal categories of wives and slaves. Marriage and purchase (of a female slave) operate with payment of dower or price to legalize intercourse; release of a wife

through
t
al
a
q
parallels the release of a slave of either sex through man- umission: both terminate
milk
and thereby, in the case of the divorcee and the freed concubine, render sex illicit. Yet marriage remains in some essential way distinctive and irreducible to matters of property. This chapter explores three example cases that force attention to the intersection of gender, sex, and property relations.

The first case concerns a person who comes to own his or her spouse. Chapter 4 explored the situation of a married female slave who was sold to another owner. There, marriage trumped property rights: the marriage remained intact, her husband retained his power of di- vorce, and her new owner did not gain sexual rights. But a husband coming to own his enslaved wife pitted marriage and enslavement against one another with a different outcome: the marriage was dis- solved and the commercial ownership tie persisted. If the parties’ gen- ders were reversed, and a woman came to own her enslaved husband, the situation would shift dramatically, as the male prerogative to make his ex-wife his concubine did not apply in the other direction.