Introduction
The terms ‘family law’, ‘succession’ and/or ‘personal status law’ are modern Western categories adopted by contemporary Muslim states in the process of modernizing Shari'ah law and codifying it.
Islamic pre-modern law differentiates between matters of ritual and worship (‘ibdddt) versus relations among human beings (mudmaldt) of which marriage and succession fall, broadly speaking but not exclusively, under the second category.1 The pre-modern fiqh-literature deals with these matters under the headings of nikdh (marriage), talaq (repudiation) and fara 'id (lit. allotted portions: succession).2 Family law and succession are extensively dealt with in the Qur’an and Sunnah. Sexuality outside marriage and legal possession, i.e. sexual relation of a man with his female slave, is forbidden and men and women are equally punished for unlawful sexual relation (zina) (24:2—4),3 which is God’s right.4 Also mentioned in the Qur’an are a woman’s right to dower (saddq/mahr) (4:4), the man’s prerogative to marry up to four wives (4:3), man as head of the family (4:34), as well as forms of marriage separation (2:226—32; 65:1—5) and the waiting period (‘idda) (2:228) a woman has to observe after the end of a marriage. Regulations in the Qur’an can be interpreted as correcting the pre- Islamic custom: dower was now given to the woman herself and not to her father, a male’s right to marriage was restricted to four women and levirate marriage was forbidden (4:23), as was the practice of killing new-born baby girls (81:8—9).5 On the other hand, traditions seem to imply that women had more space of movement and sexual freedom in pre-Islamic time, including the existence of different forms of marriage, which seem to have been matrilocal and matrilineal.6 Khadija, the first wife of the Prophet and a rich and self-confident merchant, who hired Muhammad and offered him marriage, is often named in this respect. However, the scarcity and inconsistency of the sources of the first and second centuries do not warrant far-reaching conclusions. With all due caution, it may be said that verses and regulations reflecting gender equality, e.g. zina — punishment for both men and women in the Quran (24:2—4), stand beside verses which reflect gender hierarchy, such as 4:34. A variety of different types of marriages (obviously including matrilocal and matrilineal forms) in pre-Islamic time was replaced by a strict patriarchal, patrilineal and patrilocal form of marriage. The pre-Islamic legal practices were thus corrected and fixed by the Qur’an. They can be seen as a reflection of the historical situation of seventh-century Arabia.In the centuries following, these Quranic verses (as well as the Sunnah reports) were interpreted by the jurists, who held the monopoly of exegesis.7 Since the literary period of Islamic law, which started in the middle of the eighth century,8 authoritative fiqh texts were produced by the four Sunni schools and the main Shi' i school of law, the Imamiyya, and jurists deduced a broad variety of detailed rulings and opinions justifying the classification of Islamic law as ‘jurists’ law’.9 This inherent pluralism of Islamic law is expressed in what the jurists call their ‘difference’ (of opinions) (ikhtilaf) which is institutionally represented in the mentioned schools of law.10 Obviously, the well-known categorization of Islamic law as a ‘holy’ law, in the sense of eternal and therefore immutable, is not in accordance with the wide range and varieties (‘difference’) of opinions deduced from the holy law that are all equally accepted in fiqh.
The ‘differences’ may seem small and hairsplitting but from the believers’ perspective they could matter: As traditional doctrine allows a Muslim to change his or her school of law at will, a girl brought up according to the Shafi' i law school, which did not allow her to marry without a marriage guardian, could claim to have adopted the Hanafi system, which would allow her, having reached maturity, to conclude her own marriage contract.11 Fascinating questions arise as to how these rulings were actually applied in the courts in pre-modern times by the (male) judges.12 How did women deal with it? Did they know about the competing rulings of the schools of law? Considering their family and social as well as legal backdrop, could they just turn to a Maliki judge as in the above-mentioned case from 19th-century British India, which Coulson quotes? There is a vast desideratum for research on legal practices of courts, as well as on actors, due to the comparatively scarcity of sources available on the legal practice in pre-modern times.
As the focus of this chapter is on the normative literature, the legal practice cannot be dealt with here.Despite the great variety of rulings and different nuances in the regulations of gender roles in the schools of law, the patriarchal family structure remained, as mentioned above, the basic idea of family and gender relations until the modern age. In what follows, special attention is given to the differences between the schools of law, since a process of ‘picking and choosing’ out of the different opinions of the law schools13 can be observed in the making of modern legislation and codification.
The first part of the chapter will deal with the regulation of sexual relations, the second part with family law chronologically from betrothal and marriage to separation, including the legal effects of marriage such as parentage. The third part covers the regulations regarding succession and, finally, a summary will be presented at the end.
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