Marriage and Slavery in Early Islam

Kecia Ali

• Publisher: Harvard University Press
• Year: 2010
• Print ISBN: 9780674050594
• eBook ISBN: 9780674261396
• Topic: Theology & Religion
• Subtopic: Middle Eastern History

What did it mean to be a wife, woman, or slave in a society in which a land-owning woman was forbidden to lay with her male slave but the same slave might be allowed to take concubines? Jurists of the nascent Maliki, Hanafi, and Shafi'i legal schools frequently compared marriage to purchase and divorce to manumission. Juggling scripture, precedent, and custom on one hand, and the requirements of logical consistency on the other, legal scholars engaged in vigorous debate. The emerging consensus demonstrated a self-perpetuating analogy between a husband's status as master and a wife's as slave, even as jurists insisted on the dignity of free women and, increasingly, the masculine rights of enslaved husbands.

Marriage and Slavery in Early Islam presents the first systematic analysis of how these jurists conceptualized marriage—its rights and obligations—using the same rhetoric of ownership used to describe slavery. Kecia Ali explores parallels between marriage and concubinage that legitimized sex and legitimated offspring using eighth- through tenth-century legal texts. As the jurists discussed claims spouses could make on each other—including dower, sex, obedience, and companionship–they returned repeatedly to issues of legal status: wife and concubine, slave and free, male and female.

Complementing the growing body of scholarship on Islamic marital and family law, Ali boldly contributes to the ongoing debates over feminism, sexuality, and reform in Islam.

1

Transacting Marriage

IN SEVENTH-CENTURY Arabia, a daughter was born to a Muslim named al-Musayyab ibn Najaba. He hastened to visit his cousin Qurayʿa bint Ḥibbān at her home to share the good news. Her innocuous reply—“May God bless you”—led Musayyab to an impetuous declaration: “I have married her to your son.” Without hesitation, she responded: “I have accepted.” The visit continued, but after a while Musayyab reconsidered his offer of marriage between his newborn daughter and his cousin’s son, and he stated, “I was not serious; I was only joking.” Qurayʿa, though, rejected his attempt to renege. “You offered marriage,” she pointed out, “and I accepted.” Unable to convince her to free him from his promise, Musayyab tried a new tack. Despite having originally viewed his cousin’s consent as sufficient, he insisted that he would take the matter up with her husband, the father of the son whose marital fate was being arranged: “[It is] between me and ʿAbd Allāh ibn Masʿūd.” Not long thereafter, Ibn Masʿūd returned home and learned what had transpired in his absence. On ascertaining that Musayyab had really made the offer of marriage, Ibn Masʿūd rejected his claim that a proposal made in jest could be withdrawn, repeating a prophetic dictum: “In marriage, seriousness and joking are the same, as in divorce seriousness and joking are the same.”¹ When Musayyab remained unconvinced, Ibn Masʿūd delivered the clincher: “Qurayʿa’s word is valid, and she accepted.”²

This story defending a woman’s right to contract a valid marriage appears in the Kitāb al-Ḥujja, a ninth-century work whose full title translates as “The Book of Refutation of the People of Medina.” It is attributed, with some debate, to Muḥammad al-Shaybānī, one of the two main disciples of eighth-century Iraqi jurist Abū Ḥanīfa. The Ḥujja defends Abū Ḥanīfa’s views against his detractors, “the people of Medina,” a group comprising that city’s prestigious legal authorities, including Mālik ibn Anas. Abū Ḥanīfa held that women could contract marriages for their minor or enslaved charges, as agents for others, and on their own behalf. Other Sunni thinkers, including even Shaybānī elsewhere, hotly contested the notion that women could contract valid marriages. Rather, a woman had to be represented by her father or another marriage guardian (walī) drawn from her agnatic kin. Such was female incapacity that in the absence of a kinsman able or willing to act for her, a woman was obliged to seek out a public official, such as a judge, to act in her walī’s stead.

The incident with Musayyab’s daughter and, more to the point, the way the Ḥujja draws upon it invite us into the prevailing culture of jurisprudential dispute. They also show how heated disagreements on specific points of law—here, an aspect of women’s legal capacity—coexisted with crucial shared assumptions about marriage and kinship. A mother’s guardianship was controversial, but neither the parties involved in the original incident nor the jurists whose views are explored in the Ḥujja question the legitimacy of marrying off infants. In examining the disputes we must not neglect the consensus over broader social arrangements. In texts that explore legal disputes, arguments often concerned issues that were relatively small compared to the universe of unspoken agreements. At the same time, seemingly minor disputes could hinge on major differences in jurisprudential methodologies.

This chapter treats consent to marriage and dower, areas around which formative-period Muslim authorities agreed and disagreed. I highlight assumptions about kin and household networks as well as about the legal personhood of free and enslaved males and females, both minors and majors. I discuss the marriage contract, considering who had the power to contract it and whose consent was necessary. Then, I turn to dower, the compensation due from a husband to a wife at marriage. I show significant points of agreement between the jurists and also their differences in method and approach. I argue for the significance of jurisprudential dispute to the formation and honing of doctrines and for the role of analogy—especially the linked analogies between wife and slave, and marriage and purchase—in shaping jurisprudence on marriage.

Consent and Coercion

Marriage was necessarily consensual. It required an agreement, expressed in terms of offer and acceptance, by the two contracting parties.³ But these were not necessarily the bride and groom. Guardians and proxies abound in the legal sources, especially for brides. As with the case of Musayyab and his newborn daughter, the agreement of the spouses was not always required. Marriage was very much a family matter, and involvement of kin in arranging and concluding women’s and girls’ marriages was assumed. But parental—usually paternal—involvement was not limited to the marriage of daughters. Qurayʿa and Ibn Masʿūd’s son was married off with no more say in the matter than Musayyab’s daughter. In trying to weasel out of the impulsive marriage he had contracted for his daughter, it never occurred to Musayyab to challenge it on grounds that the infant groom could not give his consent. Rather, everyone agreed that fathers had the power of compulsion, ijbār, over children of both sexes. Yet the term compulsion gives a false impression of constraint; though occasionally the jurists discussed the permissibility of contracting such a marriage over a son or daughter’s objections, for the most part minors were presumed too young to have any opinion.

Marrying off a minor child was not a Muslim innovation. It has parallels in other ancient legal systems and precedent in pre-Islamic Arabia, where parents might arrange marriages for their young children. Sometimes, as with Musayyab’s daughter, both spouses were infants. At other times, one spouse was a child and the other an adult. The life of ʿĀʾisha, daughter of Abū Bakr and later wife of Muḥammad, reflects both practices. She was originally promised as a young child to a boy about her own age. That agreement was eventually dissolved by the two sets of parents—with apparent relief on the would-be groom’s side, since ʿĀʾisha’s family had converted to the new faith and they had not.⁴ She was then, at age six or seven, married to the Prophet, though the marriage was not consummated for a few years. I will say more about this marriage shortly and return to it in the next chapter; for now, suffice it to note that it has since been invoked as precedent for topics ranging from when girls attain majority to whether compulsion of minors is permissible.

For free males, legal capacity was a simple matter: before majority they were subject to paternal compulsion; after it, they were not. As minors, they could not contract their own marriages; as majors, they could. (Bulūgh, majority, was usually constituted by puberty, normally menarche for a girl and first nocturnal emission for a boy, though other signs of physical maturation could be taken into account.) A father’s right to marry off his minor sons was taken for granted, as was the cessation of this right when they attained majority. Any free male in his majority and of sound mind had free rein over his marital affairs, but the Muslim jurists did not think of this in terms of obtaining his consent. That would have implied assent to someone else’s decision or actions, which was antithetical to their notion of the male agent. Instead, it is only with regard to enslaved males and females that serious discussion of consent, or lack thereof, occurs.

Even setting aside, for the moment, the argument in the Ḥujja over female capacity to contract marriage, free females’ consent—that is, whether their consent was necessary in order for a valid marriage to be contracted for them—was a complicated subject. Virginity, not a consideration with regard to males or enslaved females, factored into decisions about compulsion of free females. The terms thayyib (previously married, non-virgin) and bikr (never married, virgin) are occasionally applied to males in connection with the application of more or less severe ḥadd punishments for illicit sex.⁵ In connection with marriage, however, they are relevant only to females; for males, the key distinction is majority. Legal texts seldom discuss a female slave’s virginity in the context of marriage, whether because of the presumption that she was unlikely to have remained a virgin until such time as she might be married off or because it was entirely irrelevant to her legal standing: she never had a say in her own marriage arrangements. For free females, both virginity and majority were of concern. Fathers could compel marriage of daughters who were both virgins and minors. On the flip side, those who were neither virgins nor minors could not be compelled but had to give their spoken assent to any proposed marriage. The intermediate categories—daughters who were either minors or virgins but not both—were the subject of disagreement. Never-married (and thus presumably virgin) daughters in their majority generated the most significant debate surrounding consent. Mālik and Shāfiʿī affirm the father’s right to compel her, while Abū Ḥanīfa and his disciples reject it forcefully. I will turn to their rationales below.

The (marriageable) minor non-virgin appears seldom in these texts and is likely to have been rare in practice. A girl could be married then divorced or widowed before reaching majority since, as Chapter 2 shows, majority was not a criterion for consummation. Because it was theoretically possible, the jurists considered it. Mālik allowed the compulsion of a minor non-virgin while both Shāfiʿī and the Ḥanafīs rejected it, though for different reasons.

For Mālik, either virginity or minority allowed compulsion, so a minor non-virgin could be compelled.⁶ A previous marriage, if unconsummated, did not remove a father’s power of compulsion. A passage from the Mudawwana explores the limits of a father’s authority over a previously married (but not minor) daughter: “[Saḥnūn] said: If a man marries off his virgin daughter and her husband divorces her or dies before consummating [the marriage] with her (yabtanū bihā), may the father marry her off [again] as he would marry off a virgin according to Mālik? [Ibn al-Qāsim] said: Yes.”⁷ Because this marriage ended before consummation, the bride remained subject to paternal compulsion.⁸ If the husband had consummated the marriage, however, “then she has more right to herself.” A wife gains control of her own affairs (“malakat amrahā”) through consummation.⁹

Abū Ḥanīfa rejects compulsion at majority for all females, both virgin and non-virgin. Formative-period texts do not record his opinion or that of his major disciples on the case of the minor non-virgin, though later Ḥanafī texts explicitly state that majority is determinative: a bāligh female could not be coerced even if she was a virgin, but a minor could be, even if she was thayyib.¹⁰ Shāfiʿī, though, objects not only to compelling the minor non-virgin into marriage but to marrying her off at all. A non-virgin could not be married off without her consent, and a minor could not give valid consent. Thus, a once-married minor could not be married again until she came of age.¹¹ One glimpses the particular preoccupations of the jurists in their treatment of this issue: Māl...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• 1 Transacting Marriage
• 2 Maintaining Relations
• 3 Claiming Companionship
• 4 Untying the Knot
• 5 Marriage and Dominion
• Conclusion
• Notes
• Index