islamic jurisprudence lecture 7 [8c963d22]

coherent understanding of marriage

• building on Layla Ahmed - "women and gender in Islam"

• looking at devise of analogy, and reasoning through analogy

  • specifically the quran
• using slaves was an important analytic for the scholar and jurst, and cannot understand marriage without understanding legal theorization of slavery and commercial practices

• when does the analogy not match up with women and slavery?

  • women are not comparable because they do not sell their bodies to men

• "marriage in the premodern period cannot be completely understood without an understanding of slavery" - is this true?

  • same discursive frame used for slavery and marriage
  • justification from slavery, using slavery as an analogy

  • line between legal rationality (jurisprudence of slavery and marriage) -> this rationality is constructed to discursive frame <- social realities

    • the gap between practice and discourse?
  • ibn al-hajj - quotes him and makes the point that the jurists like him were not people who were sociologically representive
  • why marriage and divorce? what does this tell us about early muslims?
• islamic laws are diverse, and because they are diverse, they are suspectible to reform

• aziza habri - lawyer, founder of qurama - US associations for muslim women lawyers

  • pratices of medina is a normative framing

    • textualizing social practices

• social construct and the interplay between jurist rulings and society

  • she looks at the hardening of juristic thought

• marriage and islamic law involve selling sexual access

  • focusing on the fluidity of categories, the logic of marriage
  • differences between the madhabs

• enslavement and masculinity?

  • enslavement either feminized or infantilized the male with regard to consent

go understand why Keisha Ali cares, the doctrine is still alive!

• many muslims still believe this doctrines to be authorative
• progressive muslims will need to build this differently

what about her assertion that "law has a life and logic of its own"

• intellectual justifications need to construct defensible arguments
• this leads to a hardening of intellectual standards

• how does this reconcile with what jurists actually believe?

  • what precendents constrain you? how constrainted are you to the actual texts itself?
• what is the point of a law that can't be enforced or is a law that they don't actually believe in?
• nascent madhabs, but lots of the positions are already established

al-surkhasi

• why do we do all this stuff for wives? do you purchase the right to the sexual access?

• why does a husband owe his wife?

  • why does a judge, people who do labor, etc
• argues that you are entitled to the opportunity cost of doing another thing
• effectively paying a retainer
• being a wife as a job?

questions of practice in stipulations

• requirement of a bridal gift

• dowery and dower - both go to the wife

  • indebtedness of husband
• shafi'i's believe that monetary transfer to wife maintanence as a economic value, i.e. unground grains, because unground grains could be sold

marriage consent -> not neccessarily between bridge and groom

• is the consent between the different parents
• is marriage a contract between families

is patriarchial authority given life through divorce?

• functions as an escape value for categories of wives

3 types of divorce

• talaq - unilatery repudication
• huluq - forgo the mahr, pay back the dowery in exchange for divorce
• divorce through courts