islamic jurisprudence lecture 7
Tags: islamic jurisprudence
Kecia Ali - Marriage and Slavery in Early Islam
- 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
- pratices of medina is a normative framing
- 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
- ali lays out how contingent the assumptions of slavery and hierarhcies required in the relationship
- 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?
- arguing that transaction in marriage was commericial in essence, but qualified that it does not involve selling sexual access to her body
Rapoport - Marriage, Money, and Divorce
- 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
- discursive frame of patriarchical authority, model of business exchange pretend itself to a sense of agency
- was debt used as a fictious way to use to pass on money?