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Question: Two men were married to two virgins and each consummated the marriage. Then one claimed after consummation that he had found his bride already deflowered, and he sent her back to her family. Then he abducted her sister by making a night raid on her [the sister's] husband's house in the village, aided by a group of peasants. Now he wants to annul the marriage, but his wife claims that it was indeed he who deflowered her. Can he annul the marriage? If he accuses her of zina' [illicit intercourse] and she is found [somehow] to have been previously deflowered, should she be sentenced for zina', and then killed, or suffer hadd punishment [the punishment prescribed by the Qur'an] or ta'zir [discretionary punishment], or is her testimony to be accepted?
Answer: The man's claim that "I found her deflowered" is of no consequence, because even if he really had found her deflowered he still must pay the entire mahr [dower] as legal opinion stipulates, and he does not have the option of annulling the marriage. And in any case, being deflowered does not necessarily mean that illicit intercourse has takenplace, for virginity can be lost by jumping, or through menstruation, or with age, and so forth. The wife is guilty of nothing, and the one who did to her what has been mentioned above disobeys God, may He be exalted. The testimony of thewoman is valid, such is the situation, and the dower in its entirety is required. . . . He [the husband] must bring his wife's sister back to the place from which he abducted her, and he should be imprisoned until he does so. And God knows best.1
Muslim legal thinkers in the seventeenth- and eighteenth-century Arab world were actively engaged in the discussion of women's place in their society. As this fatwa, or legal opinion, offered by Khayr al-Din al-Ramli, an eminent seventeenth-century jurist, suggests, they were able and willing to take on questions that spoke directly to the basic issues of women's rights in any society: it was the exercise of male power, the power to coerce and control the female, that Khayr al-Din sought to define and limit here. In the many fatwas offered and in the Islamic courts of the period, Muslim thinkers drew on a broad range of resources—their inherited legal tradition, their observations of their own society, their own ability to reason and judge—to address the questions of male power and female protections, of the law and gendered social roles, and of the existence, ultimately, of an Islamic gender system and its relevance to their own local society.
My decision to explore the ways in which this group of Muslim thinkers and Islamic institutions constructed gender in a particular time and place was influenced by how frequently today we see tradition and authenticity invoked as supports for a restrictive interpretation of women's rights and social roles. Fatima Mernissi, the prominent Moroccan feminist, has called for the revisiting of Islamic history, so that the definition of the authentic and the traditional would not be left solely in the hands of those with an antifeminist agenda. Her own work on the rereading of sacred Islamic texts, the Qur'an and the hadith (the traditions of the Prophet Muhammad), joins a battle of interpretation that is being waged with the concerns and needs of contemporary Muslim women in mind.
The return to the past, the return to tradition that men are demanding, is a means of putting things "back in order." An order that nolonger satisfies everybody, especially not the women who have never accepted it. The "return" to the veil invites women who have left "their" place (the "their" refers to the place that was designated for them) to leave their newly conquered territories. And it is implied that this place in which society wants to confine them again is to be marginal, and above all subordinate, in accordance with the ideal Islam, that of Muhammad—the Prophet who, on the contrary, preached in A.D. 610 a message so revolutionary that the aristocracy forced him into exile.
The journey back in time then is essential, not because the pilgrimage to Mecca is a duty, but because analysis of the past, no longer as myth or sanctuary, becomes necessary and vital.2
Mernissi's study of the Qur'anic commentators, hadith collectors, and biographers of the early Islamic period juxtaposes the Prophet Muhammad's revolutionary message of social equality among all people to the conservative and regressive interpretations of that message as perpetrated by some powerful male members of the early Muslim community. In brief, Muhammad's revelation, as well as his daily words and deeds, pointed the way toward women's rights and gender democracy, but much of what he won for women was quickly modified, distorted, or completely lost as the political leaders and scholars of the first few centuries of Islam shaped tradition through various processes of selective and self-serving interpretation.
In returning to the sacred texts of the Qur'an and hadith, Mernissi sought to engage the Islamic tradition in its most central and authoritative form. An Islamic view of gender did not congeal into a fixed and hardened form, however, in those early years. On the contrary, a variety of interpretive texts—Qur'anic commentaries, hadith collections, biographies, and legal writings of all kinds—formed a growing and changing corpus of authoritative material that could be read and referenced by Muslim thinkers. As political structures, economic rhythms, and social arrangements changed over time, Muslim thinkers reflected on the relevance of various texts for their own times even while they added to theauthoritative corpus with interpretive works of their own. Part of the task of reclaiming tradition, then, should include careful study of that tradition as it was shaped and molded throughout Islamic history. It is the long history of Islamic thought and of the lives people lived in harmony or tension with this thought that constitutes the Islamic heritage; and it is this history that furnishes a touchstone for understanding the whole process of creation of tradition and offers the possibility of remembering and redeeming a past as neither "myth nor sanctuary."Law and Society
In the following pages I explore the ways in which the intellectuals and the general population of a particular society and culture—in this case the urban milieu of Syria and Palestine in the seventeenth and eighteenth centuries—posed questions about gender and devised answers that suited their sense of their inherited tradition as well as their immediate needs. As they discussed and elaborated the shari'a (Islamic law) and took their business to the Islamic courts, they imbued legal texts with a meaning taken from their own lives. The study of the ways in which a Muslim community constructed a legal discourse on gender in a relatively "normal" period, at least one free of the social turmoil produced by war, conquest, or rapid economic transformation, allows us to glimpse how one Muslim society understood the law and the gender system it ordained, and how it re-created tradition, without reference to outside pressures.
I do not mean to suggest that the law and the courts played a privileged role in the construction of gender in this society. Gender relations and roles were inscribed in local customs, oral tradition, and various writings both sacred and profane, only a small portion of which have been closely examined by modern scholars.3 My decision to focus on the law was partly a practical one: there is a particularly rich body of sources for the study of legal discourse in the form of period fatwas (collectionsof judicial responsa) as well as the records of the Islamic courts themselves. None of this material is transparent, of course, as I discuss below with respect to problems of approach and method, but it is abundant and readily available. In addition, my undertaking of what is essentially a legal study also reflects my sense of the locus of current debates on women and gender. Much of the discussion of women and men, their natures and capacities, in countries where the majority of the population is Muslim today, is being framed in terms of how Islam genders society through the precepts of the shari'a. And it is the shari'a, in one form or another, that is the official law governing gender relations in the vast majority of these countries.
Although many of the current discussions of Muslim women's rights and power and of their appropriate place in society and their relations with men are anchored in an understanding of the nature of Islamic law, there is wide disagreement about how to approach this law. Practicing Muslims view the shari'a as divine in origin, based on Qur'anic revelation and the traditions of the Prophet Muhammad. The existence of the law makes it possible for them to lead a good Muslim life: it provides guidance by setting forth the rights and responsibilities of family members and by prescribing the kind of individual behavior that is acceptable or laudable, as opposed to undesirable or expressly forbidden, in the context of a Muslim society.
Even among Muslims, however, there is a disagreement about what the shari'a is and how we are to draw upon it for guidance. Conservative thinkers embrace and justify gender difference as it is inscribed in some parts of the shari'a; their resistance to change and interpretation rests on the notion that we should not tamper with the tenets of the shari'a that have been transmitted to us. The various regulations about marriage and divorce, child custody, and family obligations—all highly gendered—are to be scrupulously observed. As Barbara Stowasser points out, a twentieth-century conservative like Shaykh al-Sha 'arawi of Egypt may feel the need to defend aspects of the shari'a against criticism coming from the West by using information gleaned from the natural, social, orpseudosciences, but he will remain utterly opposed to any adjustment of the law to accommodate modern needs.4 The shari'a is God's law for all time; the Muslim jurist preserves and transmits that law but does not interpret it. This conservative position is predicated on the idea that the law originated in the Qur'an and the sunna (the sayings and doings of the Prophet), underwent a brief period of growth and development through interpretation by the founders of the various legal schools, and then settled into an ideal and enduring form. The shari'a, then, passed down through the Islamic centuries, is complete and sufficient as a guide for gender relations in the modern word.
Conservatives in Islam cannot but feel somewhat beleaguered: they constantly confront two competing positions in Islamic circles that, in their own very different ways, treat the law as far less rigid. On the one hand, there is the position of the Islamic reformists who, since the days of the nineteenth-century thinkers al-Afghani, Muhammad 'Abduh, and Muhammad Rashid Rida, have subscribed to the idea that qualified Muslim jurists can and should undertake to interpret the law so as to make it a relevant and useful guide for life in the modern world. The reformer returns to the Qur'anic text as the basis for the law and argues for a reading that emphasizes the equality rather than the complementarity of the sexes. In general, he locates the statements of the Qur'an about gender in sociohistorical context: those statements describe how best to deal with gender issues, given the conditions of the time. Fazlur Rahman, a reformer or modernist liberal (as he terms it) in his own right, discusses the reformer and his agenda in sympathetic terms:
In the field of the general rights of spouses, while the Qur'an proclaims that husband and wife have reciprocal rights and obligations, it adds that "men are but one degree superior to women" (II,228) because the man is the breadwinner and responsible for the sustenance of the wife (IV,34). From this, two diverging lines of argument have resulted. The conservative holds that this statement of the Qur'an is normative, that the woman, although she can possess and even earn wealth, is not required to spend on the household, whichmust be solely the concern of the male, and that, therefore, the male enjoys a certain superiority. The modernist liberal, on the other hand, argues that the Qur'anic statement is descriptive, that, with the inevitable change in society, women can and ought to become economically independent and contribute to the household, and hence the spouses must come to enjoy absolute equality.5
In such ways the reform or liberal position claims the juristic right to interpretation (ijtihad ) when it is necessary to preserve the true intention of the text, as opposed to its surface utterances, which are bound by the temporality, as opposed to the universality, of the Qur'anic message. This is the argument that indeed has buttressed many of the attempted and actual reforms of the shari'a in the realm of personal status in the twentieth century.
On the other hand, there are the Islamists, the second of the two groups opposing the conservative view, who also call for a return to Qur'anic principles, but without the reformist agenda. To return truly to the Qur'an and the sunna is to strip away the accretions and false practices produced by centuries of corruption and misrule, to reclaim the pure Islamic message. It is the original message about gender, as divined from various Qur'anic verses and the practices of the early Muslim community, that must serve as a guide for life in all times and places. Islamists deny the legitimacy of the reformist agenda: there is no need to adjust the shari'a to modern life, for the shari'a has eternal relevance.
But this shari'a is the law as gleaned from the original sources; in other words, Islamists are forced to engage in a good deal of interpretation if they are to construct a shari'a without the benefit of assistance from centuries of legal thought and practice. They undertake such interpretation solely to reach the true meaning of the sacred texts, however, not to cater to transient human needs and impulses. Such an approach guided the members of Iran's Assembly of Experts, convened in 1979 to fashion a constitution for the new Islamic Republic. "On matters relating to marriage, divorce, and polygyny, he [Ayatollah Safi] said, the jurists and the men in the assembly would base their decisions on therulings of the Qur'an. They would do so even if these rulings upset women or were disliked by some men. And since the Constitution would reflect God's commandments, the members would decide these issues in the same way, whether or not there was a single woman in the assembly, and explain their decisions to the people."6 Here we have a clear statement of an Islamist methodology: God's rules for marriage are to be found in the Qur'an and then applied to Muslim society, regardless of sociohistorical context. The Islamist clerics give themselves and other devout Muslims an active role in the construction of a modern shari'a, but it is not a role justified by the demands of modernization or the pressures of the West.
In addition to codifying shari'a family law, Islamization programs in Iran, Pakistan, and Sudan have included the introduction of laws that not only criminalize extramarital sex but also prescribe severe punishment for contraventions. Because the nature and punishment of these hadd (pl. hudud ) crimes, as well as the evidence needed to convict, are defined in the Qur'an, the activation of these laws appears to fall well within the Islamists' mandate. Supporters of Islamization argue that the institution of severe punishments (from lashing to stoning, depending on the status of the perpetrators) for both partners in any form of extramarital sexual intercourse does not discriminate against women—for punishment is equally harsh. Indeed, at least one scholar insists that the record in Pakistan shows that the "hudud ordinances," despite objections raised by human rights organizations, have not had an adverse impact on women, largely because so few cases result in punishment, and because men are more likely to be found guilty than are women.7 But in the context of the Islamist program of instituting the shari'a in order to redraw Muslim society, the activation of hudud laws lies in the context of a legal system that allows men but not women to seek sexual variety through multiple spouses and ease of divorce: it is the sexual control of women that is largely at issue here. It has also been noted that in some cases, such as Sudan and Iran, the Islamization of criminal law has tended to relax therules of evidence and expand the application of hudud punishments well beyond that envisioned by the classical formulations of the shari'a, thus resulting in novel forms of repression.8
Not all Islamists agree that codification of the shari'a is necessary to, or even desirable for, the realization of an Islamic society. Although Islamists who have moved into positions of political power have not hesitated to legislate in the name of the shari'a, a serious argument can be made that codification and legislation actually contravene the law. Some Islamists who do not hold state power, like those in Egypt, oppose codification of the shari'a on the grounds that the law exists as a reference and guide for judges, not as an instrument of state control.9 Muslim jurists or others with sufficient knowledge and probity must preserve the ability to apply the shari'a in specific circumstances as they know best: the law is God's law, not to be harnessed to the needs and interests of the state.
Although today's Muslim legal scholars may differ in orientation and approach, most efforts toward the elaboration of an Islamic gender system are being undertaken principally by the pens and voices of Islamist interpreters. The Islamist vision of an Islamic gender system not only lays great emphasis on male/female difference in social life, but also posits Islamic law on gender as unitary, unchanging, and sacrosanct, a law whose roots in the early Islamic period serve to define and structure gender difference for all time. In reaching back to the early sources in order to construct a version of the shari'a for the present, to be embodied in civil codes that govern male-female relations in the family and penal codes that criminalize illicit sexual activity, Islamist thinkers display little or no systematic interest in the intervening centuries of Islamic history and thought.
My purpose here, then, is to raise some questions about the history of Islamic legal discourse on gender, and to challenge, I hope, what seems to be an ahistorical and incomplete vision of what Islam has to say about, and do with, gender. I follow in Fatima Mernissi's footsteps, but focus on a different time and place. My concern here is not with thevision, intentions, and life of the Prophet Muhammad and his early followers, but rather with a Muslim community that, some thousand years later, spoke, wrote, and lived an Islamic tradition. I approach this material as a historian, a feminist, and a non-Muslim. I look at gender in two distinct ways.10 First, gender is a symbolic construction produced, in this instance, by the Muslim thinkers who developed a consciously Islamic legal discourse on gender over the great breadth of time and space of Islamic history. I do not mean to suggest that this discourse was produced in isolation from a lived social world. On the contrary, the Muslim intellectuals who elaborated legal positions on the rights, power, and social responsibilities of men as men and women as women inhabited, and responded to, the society of which they formed a part. Their construction of gender as symbol cannot be isolated from the second aspect of gender—gender conceived of as a social relationship.
Gender as a social relationship is the product of the historical development of human experience, a relationship that changes, evolves, and adapts in rhythm with a changing society. We are fortunate to be able to draw, not only on the ruminations of prominent jurists (the mufti s), but also on the minutes of actual proceedings of the Islamic courts in order to understand how legal thought developed in relation to the strategies that individuals pursued in court. Women and men pressed claims or defended interests on the basis of gender, and the court judges (qadi s) and jurisconsults (mufti s) molded their judgments and opinions in response to these laypeople's arguments and activities. Study of the court records, then, helps us to recognize the dynamics of interaction between scholarly legal discourse and the lived experience of the many Muslims, and non-Muslims as well, who brought their own expectations and understandings of gender and family to the Islamic courts. The courts witnessed the interaction between gender as symbol and gender as social relationship on a concrete level. Islamic legal discourse evolved in rhythm and reciprocity with the development of gendered social relations on the ground. Any study of the law must be a historical study, in the sense that social context—the ways in which the law was elaboratedin response to concrete social, economic, and political conditions—is of paramount importance.Law as History
Until rather recently, Ottoman Syria and Palestine in the eighteenth century would not have been targeted as fertile ground for inquiry into the development of Islamic law: received wisdom has long held that jurists in this period applied the law in a mechanical fashion, in accordance with the idea that the "gate of ijtihad " had been closed, and that jurists therefore had no license to interpret the law in response to changing situations. The authoritative pioneers of Western scholarship on Islamic law, Joseph Schacht and J. N. D. Anderson, concurred that the late ninth century marked the end of the development of Islamic legal doctrine.11 From that point forward, Muslim jurists worked with stable sacred texts and settled doctrine: their task was one of explaining and applying the law, not of interpreting it. The jurists no longer expended effort on mastering and interpreting God's law through the exertion of their mental powers of analysis: the main mental activity for jurists was not ijtihad (interpretation) but rather taqlid, the acceptance and application of the doctrines of established schools and jurists. Islamic jurisprudence (fiqh ) had thus become a theoretical construct without history; the usul al-fiqh, the sources and methodology of the law, had become a form of arcane and mummified knowledge that had little or nothing to do with the social experiences of Muslims over the ensuing centuries. Actual legal practice, by contrast, continued to be shaped by all sorts of other influences, including local custom, political expedience, and the whims of local officials. The study of Islamic law was the study of cultural artifact, whereas the study of actual legal practice was the study of the vagaries of political and economic life.12 Islamic law, the thinking went, would have nothing to tell us about the social history of a Muslim community.
Recent scholarship focusing on Islamic law and society, however, has sharply questioned such conclusions. First, the entire concept of the"closing of the gates of ijtihad " has been thoroughly undermined. Wael Hallaq, in his "Was the Gate of Ijtihad Closed?" demonstrated that ijtihad was clearly a widely accepted practice throughout the Islamic centuries, though not necessarily so termed. Although the use of ijtihad was at times controversial, there was never a consensus that the law was no longer open to interpretation. Indeed, as Rudolph Peters argues elsewhere, a living tradition of ijtihad was pressed into the service of the Islamic movements of the eighteenth and nineteenth centuries. Muslim thinkers like Shah Wali Allah (d. 1762) and al-Sanusi (d. 1859) criticized blind adherence to any one legal school and viewed ijtihad not just as a permissible practice but as a responsibility of Muslims.13 There is nothing particularly innovative, then, in the use Islamists and Reformers make of ijtihad. More important, the license some Muslim jurists exercised in interpreting the law opens the door to the possibility that legal doctrine was not in fact frozen, but rather was evolving in rhythm with social and political developments over the centuries.
A closer look at the actual mechanisms by which the law evolved suggests that it was not primarily changes in the texts of usul al-fiqh that allowed for doctrinal development, but rather innovation in other legal genres. Prior to the modern (and contested) codification of the shari'a, no one text or definitive set of texts embodied the whole of Islamic law. Like bodies of law elsewhere, Islamic law has had a long and vast textual life: through the medium of a number of different types of texts, Muslim thinkers have attempted to understand and implement God's law. Brinkley Messick, in his study of text and law in Yemen, points to the possibility of change and fluidity in a scholarly tradition based on a plurality of authoritative texts:
Authoritative texts are as fundamental to the history of shari'a scholarship as they are to the history of other intellectual disciplines. Such a text was "relied upon" in a place and time: the knowledgeable consulted it, specialists based findings upon it, scholars elaborated its points in commentaries, teachers clarified its subtleties, students committed its passages to heart. . . . Thefates of such texts were diverse, ranging from an enduring general prominence or more limited respect among the cognoscenti to a purely ephemeral authority and the all-but-forgotten status of the superseded.14
A Muslim jurist of, say, the early eighteenth century would be well acquainted with (and would have committed to memory large parts of) a number of authoritative texts—including the Qur'an, the hadith reports, works of furu'al-fiqh (the substantive Islamic law that was elaborated in a variety of texts, including the mutun or textbooks that summarized the doctrine of his own legal school) and the shuruh (commentaries on legal doctrine in relation to specific situations or problems)—as well as the collections of fatwas (the responsa or answers to specific legal queries) that had been delivered by previous jurists of his school and by others who enjoyed a reputation for learning and uprightness.
Some types of legal texts accommodated change and growth in legal doctrine, while others were fairly impermeable. Scholars accepted the Qur'an and the hadith reports as authoritative texts, not subject to any revision in substance or interpretation. And despite the persistence of the claim to ijtihad, there is little evidence to suggest that the mutun underwent any significant substantive development after the tenth and eleventh centuries. Indeed, according to Baber Johansen, Western scholars who based their theory of the steady-state character of Islamic law on their readings of mutun were not mistaken in their claims of continuity and conservatism. When we come to the shuruh texts, however, we begin to see some room for maneuver: in the process of commenting on the mutun, the jurists even within a given school of law demonstrate the possibility of multiple legal opinions about a particular doctrine. The commentaries offer different legal opinions concerning the interpretation of doctrine, thereby suggesting that schools of law can harbor more than one opinion on a given point. It is the fatwa collections, however, that are, for Johansen, the locus of doctrinal change.15
In a fatwa, the mufti (jurisconsult) responds to a question concerning the application of law to a specific problem confronting a member of hiscommunity. In devising his answer, the mufti may review the relevant material from mutun and shuruh literature as well as citing fatwas from renowned muftis of his own legal school. He weighs and sifts these opinions in light of the details of the actual case before him and reaches a decision that may constitute a restatement of prior opinion or actually entail a shift in the interpretation of legal doctrine. In either case, there is little doubt that the mufti knew himself to be engaged in an enterprise of considerable mental effort in which he called upon not only his knowledge of the texts of his tradition but also his ability to deal with many internal contradictions in the tradition and interpret the meaning of these texts in the specific historical context before him. The resulting fatwa was not a binding legal judgment but rather a considered opinion, of an informational nature, that had no necessary outcome but might, of course, have a significant impact in a particular case and, moreover, on the law over time.16
Muftis did not proceed in their deliberations in an entirely random fashion. They were guided in their work by manuals that outlined both the qualifications a mufti should bring to the work of issuing fatwas and the procedures he should employ. An examination of manuals (adab al-mufti ) of the Hanafi legal school from the fifteenth, sixteenth, and seventeenth centuries should leave us in no doubt that muftis were expected to have the training and knowledge necessary to take on a challenging task.17 Although the manuals differ in details, they all include the requirement that a mufti be in control of the received texts, including the Qur'an, the hadith, the biographies of the companions of the Prophet, the key histories, and the texts essential to a mastery of the theory and principles of the law in general and of his own legal school in particular. In some cases, a mufti is also expected to know Arabic grammar, arithmetic, and the customs of the people of his community. The mufti acquires such knowledge to the end of developing his capacity for ijtihad, and although some authors of the manuals doubt whether individuals fully capable of interpreting the law can be found, there is no question that such is the mandate of the mufti. The mufti should be guided in theprocess of interpretation, according to the manuals, by his clear recognition of a hierarchy of textual sources. When he evaluates legal texts, for example, the Hanafi mufti should privilege the writings of the eponymous founder of that school, Abu Hanifa (d. 767). The works of his disciples, Abu Yusuf, Muhammad b. Hasan, Zufur b. Hudhayl, and Hasan b. Ziyad, enjoy derivative authority and should be weighed in that order. When the mufti comes to make a decision, he draws on his knowledge of the texts and his capacity for interpretation; if he must choose between two equally valid positions, he should choose the one that is more convenient for his petitioner.
As scholars begin to pay more attention to the muftis and their fatwas, we are learning to appreciate the role the fatwa has played in the evolution of legal doctrine. In Hallaq's examination of a murder case in twelfth-century Cordoba, jurists applied the existing legal doctrine of the Maliki school and allowed the victim's brother and sons to demand the execution of the murderer as their right of retaliation. The victim's children were still in their legal minority, however, and therefore could not exercise their right to choose between retaliation and the payment of blood-money. Several Maliki jurisconsults and the Maliki judge in the case concurred that the doctrine pertaining to this case, elaborated by none other than Malik b. Aras himself, supported the position that the victim's agnates could act unilaterally as long as the children were still minors. At this juncture, a leading Maliki jurist of the time, Ibn Rushd, chose to issue a fatwa in which he acknowledged the existing legal doctrine but argued that the application of the doctrine in this case violated the principles of Islamic law: the jurists had failed to take into account the fact that the murderer was drunk at the time of the crime, the need to protect the rights of the minor children, and the Islamic preference for pardon over execution. Above all, he insisted in his fatwa on his responsibility as a legal thinker to exercise his mental powers:
[Those seekers of knowledge] did not understand what lay behind my opinion, and they thought that the jurisconsult must notabandon the authoritative doctrine applicable to the case. But what they thought is incorrect, for the jurisconsult must not follow a doctrine, nor issue legal opinions according to it, unless he knows that it is sound. . . . The doctrine contrary to which I have issued a legal opinion runs counter to the fundamental principles of Islamic jurisprudence. . . . Accordingly, sound reasoning requires one to abandon the [traditional] doctrine in favor of that which is more appropriate, especially in view of the fact that the killer was intoxicated when he committed the crime.18
Not only did Ibn Rushd take a legal position that flew in the face of a long-established legal doctrine, but his fatwa was subsequently incorporated into the corpus of Maliki jurisprudence, where it achieved the status of equally acceptable doctrine, all of which supports Hallaq's argument that growth and change in Islamic law came largely through the activities of the muftis.19
Collections of fatwas from seventeenth- and eighteenth-century Syria and Palestine illustrate a range of style that demonstrates a divergence of views concerning what constituted the proper role of the mufti and the fatwa in that period, as well as differences in the background and training of the muftis themselves. Khayr al-Din al-Ramli, a mufti in Ramla in the seventeenth century, Hamid b. 'Ali al-'Imadi, a mufti in Damascus in the eighteenth century, and 'Abd al-Fattah al-Tamimi, a mufti in Jerusalem in the eighteenth century, all followed the Hanafi madhhab, the official Sunni school under the Ottoman Empire. In delivering their fatwas, however, they took distinctly different approaches to questions of textual authority and their mandate as interpreters of the law. Khayr al-Din, as we shall see, might refer directly to the Qur'an and the writings of Abu Hanifa, the founder of his school, as well as to collections of fatwas he considered authoritative. He also felt it appropriate, however, to draw on his knowledge of local custom and human nature in order to fashion legal decisions that were well suited to the specific contexts of the cases at hand. Expansive and discursive in style, Khayr al-Din's fatwas display the way in which he exercised his mentalpowers. al-'Imadi wrote closer to the texts: when he reasoned, he was careful to cite authoritative fatwas, including those of Khayr al-Din, and he rarely went outside the accepted legal sources to justify his decisions. Like Khayr al-Din, however, he often reviewed a number of different options culled from the sources before he settled on the best choice in a given situation. al-Tamimi, by contrast, delivered his opinions in a terse shorthand style, devoid of textual reference or juristic reasoning. His fatwas consist of a brief statement of the question posed and an even briefer delivery of the response: for him, seemingly, there was only one authoritative answer to any given question.
These three muftis, then, went about their business in rather different ways. We encounter here a whole spectrum of understanding of the fatwa and the mufti. The amount of specific detail about the case at hand, the display of juristic reasoning, and the citation of authoritative text vary markedly from one authored set of fatwas to another. We can assume that all three muftis were familiar with the fatwa collections of their predecessors and that all therefore worked from similar models, but their perceptions of their own roles as muftis diverged significantly: Khayr al-Din practiced ijtihad openly and without apology; al-'Imadi was somewhat more circumspect and careful to cite textual precedent; and al-Tamimi gave the impression that rote application of preexisting rules comprised the sum total of his duties. Are we dealing here with individual preferences, with discrepancies in training, with contextual variations? We cannot be sure. Legal schools and muftis manuals notwithstanding, however, there was more than one way to deliver a fatwa in seventeenth- and eighteenth-century Syria and Palestine.
Some of these fatwas were occasioned by legal cases brought before a qadi (judge) in an Islamic court. In the Ottoman period in Syria and Palestine, all major cities and towns housed an Islamic court or tribunal (mahkama ) presided over by a qadi appointed by the Ottoman government. The voluminous records of court transactions, the sijills, testify to the many uses local residents made of the court. The court functioned as a registry office: the buying, selling, and endowing of real estate, theestablishment of business partnerships, the certification of loans, the partition of estates—all these as well as other transactions for which it might be useful to have official recognition—were faithfully recorded in court.20 In most cases, the recording of such transactions was a straightforward exercise requiring little more from the qadi than his presence. Residents came to the court most often not to litigate as such, but to create a record that might be useful in the future in laying claim to a piece of property or in collecting on a debt.
A minority of cases, however, did involve what we would identify as litigation: claims of nonpayment of debt, accusations of theft or injury, and demands for support or custody were some of the issues that were brought for judgment, not solely for purposes of registration. When a contested issue came to the court, the qadi would be called upon to exercise an active judicial role by examining evidence, calling witnesses, questioning litigants, and deciding which points of law were applicable to the case. Zouhair Ghazzal has presented such a contested case in detail, one in which a Beirut qadi in 1844 examined a claim of illegal appropriation of a waqf (religious endowment).21 The qadi not only worked his way through the problem in the usual fashion by calling witnesses, demanding oaths, and such, but he also explained the legal texts and precedents on which he based his final judgment. Such explanation was far from the norm in court records: usually the qadi issued his judgment without informing us what texts he had consulted and what reasoning process he had employed. That the Beirut qadi felt it necessary to supply the background to his judgment suggests, according to Ghazzal, that such cases did not arise very often.
The qadis were no more forthcoming in the other types of cases they examined, namely those that had to do with family matters and the relations between men and women that most concern us in this study. Residents of the local community came to court to register marriages, to dispute marriage arrangements, to negotiate some types of divorce, to argue about child custody, to claim support from various family members, and to protest sexual assault. Although there were far fewer of thesetypes of cases than of those involving business and property exchange, they were, with the exception of the recording of ordinary marriage contracts, much more contentious in tone. Most of these cases feature a litigant who felt strongly entitled, aggrieved, or both. The voice of lived experience comes through these cases more vividly than it does in most property cases. Although the narrative of the events that led up to the court appearance was no doubt shaped by the court scribe, many of the details of these "as told to" stories are clearly based on a litigant's verbal testimony and capture not just the sequence of events but also the anger, chagrin, or bewilderment that the victim experienced. In addition, all of the cases dealing with family matters were strongly gendered, in the sense that women and men made their claims or defended their actions with explicit reference to their rights or obligations as gendered individuals. The qadi, however, is just as shadowy a figure here as he is in property cases. He delivers a judgment at the end of the day, but we are rarely informed about the relevant texts and reasoning.
Ghazzal, on the basis of his work on the Beirut case and others, warns us that the records of actual court cases cannot be read in isolation as simple exercises in judicial reasoning or reflections of social reality. Court documents were drafted by qadis and scribes with certain ends in mind. In the quarrel about waqf property, for example, the case is ultimately decided not on the basis of substantive legal reasoning but on the authority of a powerful local official. Legal cover may have been sought for the outcome, but an examination of legal argument alone would not enable us to understand this case. It is in the way in which this case was embedded in local society, in the way in which it furthered the interests of powerful individuals, that it finds its logic and meaning. Almost all court records present us with similar problems of interpretation. We are rarely privy to the social context of the case, to prior disputes or agreements between litigants, or to judicial collusion with local powerholders. Nor can we be sure of the actual outcome of the case: was a particular judgment upheld and implemented? A case is not complete in itself. Still, the cases in which marital problems, child-custody struggles, or sexualassaults are brought before the qadi in search of recourse are one of the few windows we have on how people of the time perceived their rights, and what they expected from their social relationships. The sijills are that most rare form of historical document, one that records the ideas and strategies of the common person, albeit filtered through the lens of judicial and scribal authority.
What was the relationship between the system of Islamic courts and the mufti and his fatwas? Were the innovations and doctrinal developments of the fatwa occasioned or furthered in some way by judicial practice in the courts? Were qadis fully cognizant of the ways in which the muftis of their era were interpreting the law? Thanks to the work of Haim Gerber, we have some ideas about the role of the mufti in the core regions of the Ottoman Empire.22 In Istanbul, Ankara, Bursa, and Kayseri, the mufti and his fatwa were an integral part of court proceedings. In Bursa, for example, fatwas issued by the grand mufti of Istanbul were often brought to court in support of the position of a litigant. This semi-official statement of how the law was to be applied in an actual human situation contributed much to the qadi's deliberations: Gerber suggests that, indeed, the mufti supplied the critical link between legal thought and court practice. In this role, we find two distinct facets to the mufti's activities. First, as Ottoman officials, the muftis of the core regions tended to issue fatwas that supported official Ottoman edicts and standardized certain points of law at the expense of the qadis' discretionary leeway. Second, the muftis took a "pragmatic and liberal" approach insofar as they were ready to accommodate various social and economic changes of the time. Muftis functioned, then, not only as the link between legal thought and practice, but also as an interface between the state and the courts, so as to ensure that court decisions were compatible with official interpretations of the law. In both aspects of their work, the muftis were an integral part of the life of the court.
The relationship between the mufti and the court in Ottoman Syria and Palestine does not seem to have been precisely what it was in the core regions. There were pivotal differences in the background, training, andofficial standing of the muftis in the outlying regions that could not but modify the role they played, as contrasted with the role of the muftis in the core. The muftis in southern Syria and Palestine were mostly local men, many of whom had been educated in Cairo, Mecca, or Damascus; and with the exception of the mufti of Damascus, they did not form part of the ranks of Ottoman officialdom. The office of mufti also might remain within a particular family for a period of time: in Damascus, first the 'Imadi family and then the Muradi family controlled the position of Hanafi mufti from the latter part of the seventeenth century right through the first half of the nineteenth century.23 Many of the muftis shared neither language nor educational background with the qadis, some of whom were Turkish-speaking Ottoman officials often arrived from outside to head the local courts for a year or two.24 Not surprisingly, there is little evidence to suggest that the mufti and qadi worked hand-in-glove. Although a litigant occasionally appeared in court with a fatwa delivered by the local mufti in support of his or her case, this practice was by no means the standard procedure that it appeared to be in the core regions. Many of the muftis' fatwas do not seem to be connected to a particular court case at all, but rather have the look of responses to individual requests for a legal opinion, or even reflections on specific local situations they came to know of. Unlike their core-region counterparts, most Syrian and Palestinian muftis served the court system only as a secondary endeavor; their primary mission was that of delivering legal advice to the local community of which they were a part. So many of their fatwas were delivered without reference to a pending court case that we can only assume that they sometimes acted as legal guides and arbiters for people who wished, for one reason or another, to avoid the court altogether. Such an impression is reinforced, in the case of the muftis I studied, by the richness of their fatwas, in terms of the kinds of subjects and situations covered, in comparison to the sijills . They delivered opinions on the legality of various local customs, for example, that it is difficult to find mention of in the court records.
I do not mean to suggest, however, that the muftis operated at cross-purposes with the courts; on the contrary, the doctrines that the muftisespoused seem to be faithfully followed in court. There is no apparent disjuncture between the approach of the muftis and that of the qadis, but the Syrian and Palestinian muftis seem to have maintained a direct line to their communities and a willingness to take on legal problems raised outside of the court venue.
The court material I use in this study comes from the extant records of the Islamic courts of Damascus, Nablus, and Jerusalem in the eighteenth century. Damascus and Jerusalem were chosen as the home territories of Hamid b. 'Ali al-'Imadi and 'Abd al-Fattah al-Tamimi, respectively. The Nablus records, in the absence of records from Ramla, provide material from a Palestinian highland town that shares, with Ramla, the characteristics of a market town serving an agricultural hinterland. Although the vast majority of cases in these records deal with property relations of some kind, mostly sales of real estate and waqf business, residents of all three towns also came to court for a variety of other purposes, many of which impinged upon the question of gender relations central to this study. I have used a limited number of cases, selected from a reading of six complete court registers (sijills ) from the three towns, in order to be able to understand what kinds of issues the urban population brought to court, and how the judges applied legal doctrine. In their deliberations and judgments, both the muftis and the courts of the period shared a specific historical context, the contours of which necessarily frame this study.The Setting
The muftis and courts of Damascus, Jerusalem, Nablus, and Ramla were all located in geographic proximity in a region linked by complex administrative, economic, and cultural ties. Under the Ottoman Empire, the area of southern Syria and Palestine was part of the province of Damascus, and all of the inhabitants of these towns were ruled by the governor seated in Damascus.25 The authority of other powerful officials—the mutasallim or governor's deputy, the qadi al-qudah or chief judge,and the official Hanafi mufti—also extended, at least in theory, throughout the province. The governor made an annual tour of the provincial territory, the main object of which was to collect tax revenues, earmarked for the support of the pilgrimage to Mecca, from the various officeholders in the province's districts (sanjaq s), which included the districts of Ajlun and Lajjun, Nablus, Jaffa, Gaza and Ramla, and Jerusalem.26 Aside from this annual assertion of governance and exaction of taxes, day-to-day administration in the province was delegated to a number of local deputy governors and local qadis and muftis, some appointed from Damascus and others who owed their positions to local nomination. The ability of the governor and other officials in Damascus to project their power throughout the province was limited no doubt by a number of factors, not the least of which was the governor's responsibility for the pilgrimage caravan, which took him out of the province for four months out of every year.27 The other top officials were kept busy as well, with their responsibilities in the city, and had no tradition of annual tours of the province like that of the governor. At the same time, many of the courts of the provincial towns were staffed by Damascus-born officials, and notable families from provincial towns often intermarried with their Damascene counterparts.28 Despite the limited nature of centralized government at the time, the towns of Damascus, Jerusalem, Nablus, and Ramla formed part of the same administrative unit, were subject to rule by the same provincial officials, and shared a provincial elite.
The economic integration of the region was very much a product of flourishing regional trade networks, some of which centered around Damascus. Cotton from the Ramla area and olive oil and ash (alkali) from Nablus were among the raw materials feeding Damascus manufactories. In the seventeenth and eighteenth centuries, the center of commercial activity continued to shift from northern to southern Syria, as a result of a number of developments: war with Iran encouraged trade caravans to use the Baghdad-Damascus route rather than the Isfahan-Aleppo route; the growth of the Red Sea port of Jiddah privileged Damascus; and the pilgrimage caravan expanded, with Damascus as theprimary locus for the assembly of its pilgrims. All of these factors contributed to an upsurge in commercial activity throughout the region. Damascus, however, was not the hub of all economic activity. Jerusalem, Ramla, and Nablus were centers of production in their own right: all three towns boasted soap industries and traded oil among themselves. In the course of the seventeenth and eighteenth centuries, all three also began to orient their trade more toward the Palestinian coast, where the port of Sayda was expanding rapidly to accommodate an upsurge in trade with Europe. In general, the picture we have of economic activity in the region is one, particularly in the eighteenth century, of substantial growth of both industry and trade, a multiplicity of economic linkages among the urban and rural areas, and a growing external orientation, both toward other parts of the Empire and toward Europe.29
Administrative, economic, and social linkages are much in evidence in the fatwas and the court records: Damascenes do business in Nablus; married women in Ramla have brothers in Jerusalem acting as their legal agents; women from Jerusalem marry in Damascus. A network of social relations based on family ties, business dealings, and shared culture lent coherence to the region of southern Syria and Palestine. The local jurists, though some served as official or quasi-official servants of the Ottoman Empire, were typical of the region's intellectuals in their strong regional orientation. They were Arabic speakers who were born in Syria or Palestine to families of local prominence, they were educated there or in contiguous Arab lands, and they usually settled down in or near their towns of birth. Along with others of their class, they formed a local elite who served the Empire more as representatives of their local community than as members of Ottoman officialdom. Their activities as local judges and muftis could not but further regional cohesion.
The region was not, however, undifferentiated territory. Net distinctions between the urban areas and the countryside were certainly drawn, as we shall see, by the muftis themselves, who were townsmen all. The cities and towns were the seat of all that really mattered, so far as the jurists were concerned: the courts, schools, and great mosques and tombs that made intellectual and religious life possible were almost all located in urban areas. But as 'Abd al-Nour points out, the line between city and countryside could be rather indistinct. Cities and towns did not differ from villages in legal status or organization, and fairly constant rural-urban immigration mixed villagers into the city populations. Overall population increase in the seventeenth and eighteenth centuries coincided with rates of urbanization, estimated at 25 to 30 percent, that were extremely high relative to those of other early modern societies.30 This level of mobility and urban-rural contact helps explain the absence of strong prejudice: although the jurists may occasionally lament the lax practices of their rural neighbors, there is little evidence of generalized disparagement of rural people and their ways.
This is not to deny the presence of a certain urban chauvinism and strong feelings of particularistic identity among city dwellers. Although most urban areas were very mixed in their functions and housed a range of administrative, commercial, and manufacturing activities, we can easily sense the elements of a distinctive identity in most cities and towns. Of the four urban areas that concern us here, Damascus was by far the largest, with a population of perhaps 90,000 people by the end of the eighteenth century. As a provincial capital, the city housed the Ottoman officials and troops whose job it was to administer the region for the Empire. The governor, his deputy (mutasallim ), and the chief judge (qadi al-qudah ) originally were members of the Ottoman official elite who had been sent to the province for brief terms. The fourth most important official, the mufti, was, as we have seen, usually a local man, as was the qadi's assistant (na'ib ) and many of the other provincial judges. At the end of the seventeenth century and into the eighteenth century, members of the Damascene 'ulama ' (educated elite) asserted their power through a number of protests against the governor's injustice and unfair exactions. After a brief period of exile as punishment, they returned to the city with enhanced respect among the population, ready to play a key role in the governance of Damascus for much of the eighteenth century. Themain powerholders in the city for most of the century, however, were members of the 'Azm family, a local family whose ability to gain influence in Istanbul and maintain order in Syria enabled them to establish a virtual monopoly over the governorship in Damascus and other critical posts as well. The city was thus not only a seat of imperial power: it was also an arena in which local notables gained a prominence that enabled them to play influential roles throughout the region.31
Damascus was also an economic power in the area. It was surrounded by agricultural villages that furnished raw materials for its many workshops, especially those producing textiles, and provided markets for finished Damascene goods. The city was an important entrepôt for all kinds of Empire trade—silk, cotton, oil, and glass moved through the city as part of a flourishing east-west trade. In this period, most Damascene trade was with other provinces of the Empire; two mountain ranges formed a barrier between the city and the Mediterranean coast, thus discouraging any reorientation toward Europe.32
Perhaps no event was as consequential for the Damascene economy as the hajj, the annual pilgrimage to Mecca. All pilgrims from the north and east of the Empire (and beyond) gathered in the city for the annual caravan, which was organized under the protection of the Empire. Pilgrims from the Balkans and Anatolia, from the areas of Baghdad, Aleppo, and even Iran converged on Damascus to join the caravan. The numbers fluctuated from year to year, but anywhere from 20,000 to 60,000 people might arrive in the city for a given pilgrimage. Many brought goods to trade, and all of them spent at least some time in Damascus, where they would purchase supplies for the trip. Indeed, in a pilgrimage timetable supplied by an eighteenth-century pilgrim from Istanbul, the entire Istanbul-Mecca round-trip via Damascus required 238 days, 43 of which were spent in Damascus itself.33 Karl Barbir identified four different trading activities associated with the pilgrimage that benefited Damascus and its environs: goods were shipped with the caravan in either direction; supplies were sold to pilgrims in Damascus and along the route; merchants accompanied the caravan and sold supplies to pilgrims alongthe way; and the governor of Damascus carried merchandise to Mecca to sell for his own profit.34
The far smaller town of Nablus was the second most important center of commerce and production in southern Syria and Palestine. As a sanjaq seat, Nablus housed an administration made up largely of members of leading local families who were notorious for their penchant for autonomous action. As in Damascus, the local notables never appeared to entertain the notion of mounting an actual challenge to Ottoman rule, but their relations with Istanbul involved more foot-dragging than was the norm. From their bases in the town of Nablus or in outlying village redoubts, the al-Nimrs, Tuqans, 'Abd al-Hadis, Jarrars, Jayyusis, and others acquired power at various times through their ability to employ family solidarity and patronage for influence or even armed struggle when necessary. Indeed, the political narratives of the period read as Byzantine accounts of conflicts and alliances among family groups that competed to acquire, preserve, and increase their power, whether that be economic, in the form of landholdings through control of timars (land grants) and iltizams (tax-farms), or administrative, in the form of major offices, including governorships.
Nablus, too, was well situated for the purposes of regional trade. Its merchants plied the routes from Nablus to Cairo or Damascus, exporting soap, cotton, olive oil, and textiles. A group of merchant families in Nablus, trading primarily in soap and grains, prospered, and the ranks of a social group were further swelled by tradesmen and artisans, whose markets were more purely regional. As was the case with other towns in the region, the rural hinterland figured prominently in the town's development: the surrounding villages provided most of the resources that enabled Nablus to prosper, especially in the course of the eighteenth century, and to achieve an economic dominance in the region second only to that of Damascus.35
The city of Jerusalem was not primarily a merchant town, and its location had certain obvious disadvantages: it lay neither on the Cairo-Damascus trade route nor on a major Meccan pilgrimage route. It was,however, the main urban center of the sanjaq of Jerusalem and served as a market town for some 220 surrounding villages, as well as the town of Hebron and neighboring bedouin tribes. As the seat of Ottoman district administration and as an important center for local commerce, Jerusalem played an economic and political role in the province. It was also a center of soap and handicraft production.
There is evidence to suggest that Jerusalem's hinterland was more difficult to govern than was that, say, of Nablus; proximity to desert lands and a high level of bedouin activity circumscribed the city's ability to draw on local resources.36 Its religious significance as a holy city in Islam lent it distinction, however, and its mosques and shrines attracted pilgrims. Many of the religious sites as well as social services—fountains, soup kitchens, and so on—in the city were endowed by waqfs established in villages throughout Palestine, and members of the Ottoman ruling elite, including Sultan Sulayman's beloved and powerful wife, Hurrem, had taken a personal interest in the city's development.37 Although it remained modest in size during this period, Jerusalem did boast a number of institutions, such as mosques, shrines, and schools, that not only attracted visitors but also made it a center of cultural and religious life for the province.
Of the four urban areas under consideration, Ramla was by far the smallest. It was the ad ministrative seat of a subdistrict (nahiya ) in the Ramla and Gaza district. Its distinctive features had much to do with its location in the coastal plain. Early on, Ramla emerged as a center for handicraft production, particularly spinning and soap-making.38 As a market town in a cotton-growing area, Ramla attracted the attention of European merchants, some of whom set up shop there. France appointed a vice-consul in Ramla in the eighteenth century, underscoring French commercial interests in the area. Europeans may have also been drawn to the town by the presence of a sizable indigenous Christian community, perhaps one-third of the total population.39 The exercise of power and moral authority at the local level appeared to be the prerogative, however, of a Muslim elite. When the inhabitants of Ramlastaged a revolt in 1767 to protest the tax demands of the governor of Damascus, it was the qadi and mufti of the town who took the leadership roles.40 Still, Ramla, despite its small size, boasted—compared with its neighbors in the region—a sizable cosmopolitan population and a high level of commercialization of agriculture and handicrafts.
The province of Damascus was also home to a number of bedouin tribes, whose presence impinged in varying degrees on the urban environment. The long-standing tensions as well as modes of cooperation between the nomadic bedouins and the settled peoples of the region were brought into focus at the time of the annual pilgrimage. The trip from Damascus to Mecca was a caravan journey of some 35 days through a generally inhospitable landscape, and a successful pilgrimage depended on the cooperation of bedouin tribes who were hired to provide camels and protection and to act as guides for the caravan. As Muslims and Arabic-speakers themselves, the bedouins had much in common with the pilgrims they shepherded. Usually all went well, and the pilgrims returned without incident. Upon occasion, however, the caravan would be attacked and looted by a bedouin tribe in response to the withholding of payment or perhaps the failure to be hired at all on that particular trip. At any rate, the protection of the caravan against bedouin assault remained a preoccupation of the commander of the pilgrimage throughout the seventeenth and eighteenth centuries.41 In the context of the pilgrimage and other vital trade in the region, the bedouin provided services critical to the economy; at the same time, they were viewed by the settled peoples as a distinct and volatile element whose adherence to law and obedience to authority could not be presumed.
The muftis and courts we study here occupied this terrain, one of considerable political, economic, and cultural cohesion. In recent years scholars have sharply revised the views previously held on the general state of affairs in southern Syria and Palestine in the seventeenth and eighteenth centuries. The picture of a bleak landscape marked by population decline, economic misery, and political decay and corruption, all punctuated by bedouin defilements, has given way to a more balancedview that takes into account substantial population growth, considerable vitality in the agricultural and commercial sectors, and the presence of a local elite whose drive to assert their own authority often worked to the advantage of local institutions and political and economic stability.42 Throughout this time and place, muftis and qadis were intimately involved in most aspects of life, as officials with notarial functions, as arbiters of disputes, as representatives of state power, and as members of a vital local elite. Their judicial functions brought them into close contact with a broad segment of the population they served; their concerns cannot but reflect the kinds of situations they were called upon to ponder and to judge. Indeed, the work of a particular mufti often seems to bear the stamp of the town in which he operated, al-'Imadi's fatwas, for example, exude a sensitivity to the social distinctions of complex urban life; class distinctions figure largely in his discussions of gender. Khayr al-Din's opinions, by contrast, evince a much greater attention to the problems of rural life and peasant practice. 'Abd al-Fattah al-Tamimi's work, produced in a center of orthodoxy, tends the most, of the three, to champion the straight and narrow approach to legal interpretation.
All three muftis, however, lived and worked in communities marked by clear social distinctions. Their opinions, and the court cases of the period, clearly distinguish among the three principal urban classes of the time: a small, elite upper class composed of a few families enjoying economic position and political dominance through the long-term monopoly of official government positions and land grants; a larger "middle" class of merchants, 'ulama ', and prosperous craftsmen engaged in trade, production, and services; and a lower class composed of the bulk of the working population of the town. As we shall see, many of the muftis' discussions of gender were informed by a developed sense of social distinction, of the ways in which social position and power were shaped by class difference as well as by gender difference. For all of these scholars, however, the elaboration of the social relationships born of marriage and divorce, the rights and responsibilities of parenthood, and the gendering of space and sexuality took place within the context of a shared culturaltradition and were embedded in the political, economic, and social conditions of Ottoman Syria and Palestine.The Muftis
The life of the Shaykh Khayr al-Din (in full, Khayr al-Din b. Ahmad b. Nur al-Din 'Ali b. Zayn al-Din b. 'Abd al-Wahhab al-Ayubi al-'Alimi al-Faruqi al-Ramli) began in the Palestinian town of Ramla in 993 H. /1585 A.D. The third son of a family of local prominence and documented lineage, Khayr al-Din took up Qur'anic studies as a boy in Ramla and progressed to legal studies, focused on the fiqh of the Shafi'i school. At the age of fourteen, he traveled to Egypt to join his two older brothers, who were studying at al-Azhar (the premier institution of Islamic learning in the region). After his return to Ramla at age 20, he began a long and productive career as a mufti that ended only with his death at age 88 in 1081 H. /1671 A.D. This seemingly uneventful life yielded a collection of finely argued fatwas that were to serve as a model and authoritative reference for jurists for generations to come.
In eulogizing this life, Khayr al-Din's biographer, al-Muhibbi, tells us much about how the age viewed a mufti, his qualifications, and his mission.43 His education was broad: he studied Qur'an and hadith , fiqh , linguistics, grammar, rhetoric, and prosody. He was also well versed in the doctrines of more than one legal school (madhhab ). Khayr al-Din's intimate knowledge of legal doctrine across madhhabs and his eclectic approach to legal reasoning are illustrated (by al-Muhibbi) in typical anecdotal fashion. He had studied with a Shafi'i shaykh in Ramla and continued to adhere to the Shafi'i school at al-Azhar. One of his brothers, however, encouraged him to pursue Hanafi legal studies, possibly because of the greater possibilities and prestige afforded by the "official" school of the Empire. Troubled by the thought of forsaking the Shafi'i school, he sought guidance at the tomb of the Imam al-Shafi'i himself in Cairo. As Khayr al-Din slept by the tomb, he dreamed that the imam came to assure him that all the schools shared the right path, and heawoke ready to devote himself to the study of Hanafi law. His intimate acquaintance with both Shafi'i and Hanafi doctrine was to inform his work throughout his tenure and no doubt underlay his toleration of a variety of legal approaches.
Khayr al-Din began to issue fatwas while still a young man in Cairo, and after his return to Ramla he taught, presumably in the field of legal studies, and continued to issue fatwas to those who requested them. But he did not hold an official post as a mufti. On the contrary, his biographer, al-Muhibbi, is careful to note that Khayr al-Din received neither a state stipend nor income from a waqf in return for his services. His position as mufti evolved as he responded to legal questions posed by members of his community, and the "excellence of his answers" encouraged others to seek him out. Eventually, his reputation spread as far as Damascus and even among the bedouin, who accepted his judgments with uncharacteristic docility. His had become an authority that took precedence over that of the officially appointed qadi: a fatwa from Khayr al-Din could override a local court decision. Such was the career path: it was not just years of diligent study that equipped a man to be a mufti; he must also prove himself through practice and win the acclamation of the local population. The Empire had no discernible role here, and, indeed, a mufti of sufficient reputation enjoyed an authority that appointed officials could not contest. The striking contrast between the picture drawn by Khayr al-Din's biographer and the standard practices of the core regions of the Empire, where muftis were the obedient servants of the state, working within the confines of the court system, suggests that both the muftis and the courts operated rather differently out in the provinces.
The absence of official position and therefore of salary meant that Khayr al-Din was, by necessity, a man of parts. He was a farmer who became very much involved in the commercialized agriculture of the Ramla area, tending vineyards and acquiring land for olive, fig, and various other fruit trees. He also owned significant urban real estate. The income from these activities allowed him to pursue his avocation as a mufti. His immersion in worldly affairs helped, no doubt, in many of his deliberations, for he had firsthand knowledge of the agricultural and business practices of the day, which were often brought before him. al-Muhibbi viewed these kinds of activities in a thoroughly positive light. Khayr al-Din also drew on these experiences and the impressive holdings of his personal library to write treatises on various subjects, as well as poetry.
In keeping with the biographical tradition of the day, we are told very little about Khayr al-Din's family life. He had at least one son, and must therefore have been a husband and father. Otherwise, we are not privy to information that could help us with his family context. The personal traits that al-Muhibbi ascribes to him—kindness, generosity, and humility—imply a certain sensitivity and ability to empathize; as we shall see, these qualities did imbue his fatwas with a spirit of toleration and flexibility. al-Muhibbi sums up the impact of Khayr al-Din's career with his usual hyperbole: "Ramla in his era was the most just of all places and an illustrious model of [Islamic] lawfulness."44
Hamid al-'Imadi's life diverged from that of Khayr al-Din in significant ways.45 Hamid b. 'Ali b. Ibrahim b. 'Abd al-Rahim b. 'Imad al-Din b. Muhibb al-Din, known as Hamid al-'Imadi, pursued a career as an official mufti in eighteenth-century Damascus. From the beginning, his was an education in preparation for official life. Born in 1103 H. /1692 A.D. in Damascus, the son of the Hanafi mufti of Damascus before him, al-'Imadi studied with a wide array of scholars of considerable reputation and official connections. He could do so by remaining in Damascus until the age of 25, taking advantage of the presence of local scholars of standing like 'Abd al-Ghani al-Nabulsi, the well-known sufi, as well as the muftis of the Hanbali and Shafi'i madhhabs , and the accessibility of visiting scholars from as far away as Egypt and India. Like those of Khayr al-Din, his legal studies were not focused on Hanafi doctrine alone but entailed serious study of the fiqh of other legal schools. At the age of 25, al-'Imadi made the journey to Mecca, a pilgrimage cum study tour that allowed him to study with scholars from Mecca and Medina. He also had the opportunity of meeting and studying with the highest-ranking judge of the Empire, the qadi 'askar . After his return to Damascus, al-'Imadireceived an official appointment as the Hanafi mufti in 1137 H. /1724-25 A.D. , in which capacity he taught and delivered fatwas, two volumes of which have come down to us.
His education, like that of Khayr al-Din, exposed him to a range of teachers and approaches that equipped him to pursue an eclectic strategy in his juristic activities. He was not, however, a mufti by popular acclamation. He owed his position to official appointment, and he could lose it by falling into official disfavor. His biographer, Muhammad Khalil Muradi, relates that one of al-'Imadi's nephews intrigued against him in Istanbul and managed to have him dismissed in order to take his place as mufti. During the ten-month period in which al-'Imadi lacked an official position, the "people" continued to think of him as a mufti, and it was he, not his nephew, upon whom they called for legal guidance: he remained their mutarjim (interpreter). The conclusion we can draw here is an interesting one: Istanbul could appoint someone as mufti for the province of Damascus, but appointment alone did not guarantee legitimacy. As the scion of a learned family of jurists and muftis, and as a man who had earned a reputation as "educated, moral, mannered, and knowledgeable," al-'Imadi's appointment as mufti met with general acceptance. His dismissal did not erase the innate qualities of mufti-ness—the training, experience, and judiciousness—that had made him a capable mufti in the eyes of the population. He continued to be a mufti, a person capable of delivering meaningful judicial opinions, despite the ill-advised actions of Istanbul.
Having spent most of his life in official posts as a teacher and jurist, al-'Imadi did not appear to pursue the same range of economic activities as did Khayr al-Din, though he did invest in real estate, as was the norm among the notable families of the city. He also cultivated a number of intellectual interests: he wrote treatises about subjects as diverse as the problems posed by opium and tobacco, he composed poetry, and he researched and wrote biographies. We know as little about his personal life as we do about Khayr al-Din's. At his death he was survived only by twosons, and we may thus presume that his wife and any daughters he might have fathered predeceased him.
The life of 'Abd al-Fattah b. Darwish al-Tamimi offers a third variation on the career of mufti. In this case, of a rather obscure jurist whose fatwas had no ascertainable impact on those who came after him, his biographer provides us with very little information indeed.46 'Abd al-Fattah hailed from a Nablus family with connections to the judiciary. His father had been a preacher (khatib ) in the Ibrahimi mosque in Hebron and served as na'ib (assistant) to the qadi in Nablus, as well as qadi in his own right in Jerusalem. 'Abd al-Fattah studied in Jerusalem with the Hanafi mufti there, one Shaykh al-Sayyid 'Abd al-Rahim al-Lutfi, and eventually settled down in the city, married the shaykh's daughter, and worked as the shaykh's assistant. It was in his capacity as the mufti's deputy that he began to issue his own fatwas, a number of which were collected and passed down in manuscript form. He also pursued a career as a judge: he held the post of qadi for periods of time in Ramla, Gaza, and Nablus before his death in 1138 H. /1725-26 A.D. We have no indication that 'Abd al-Fattah enjoyed as much variety in his teachers and lessons or the opportunities for travel as had the other muftis whose careers we have examined. And indeed, his fatwas have a rote quality and a narrowness of vision that reflect his more limited experience.
To become a mufti in seventeenth- or eighteenth-century Syria or Palestine was, above all, to achieve a certain eminence as an interpreter of the law. Although the Hanafi mufti in Damascus was an official of the Empire, even his authority was based in large measure upon his ability to establish himself as someone who had a proper background, admirable personal qualities, and a good track record of legal interpretation. The other, locally based muftis owed their positions almost entirely to a general recognition of their abilities. They were expected by their biographers to act not as representatives of the Empire—effectiveness as a state servant is never mentioned as a positive quality in amufti—but rather as purveyors of justice and enlightenment to their communities. Their knowledge of the law and their ability to engage in active, relevant interpretation were the attributes that made them worthy of the mufti's mantle.
The muftis interacted with the local Islamic courts. They were asked to deliver opinions about court cases either before or after the fact. A plaintiff could seek a fatwa from a mufti in order to be able to produce it in court in support of his or her position. A disgruntled party might, in the wake of a qadi's unfavorable judgment, request a fatwa in preparation for raising the issue once more. A fatwa was neither required nor excluded by court procedure, but the fact that fatwas were introduced into court rather infrequently, and that the local mufti appeared to issue most of his opinions in response to questions that did not arise out of current litigation, suggests that the relation between the court and the mufti was not always a close one.
The muftis did issue opinions on situations that were likely to come to court, however, and we will be interested in the extent to which their interpretation of legal doctrine touching on matters of gender was honored in the ways in which judges decided their cases. It was also often the mufti, and almost never the qadi, who discussed issues of doctrine and legal principle in a way that allows us to read their opinions as a discourse on gender. It was the interplay between the muftis' discussion of gender at a symbolic level and the working out of gender as a social relationship in the specifics of the fatwa and the courts that shaped a definable "Islamic" vision of a gendered social order in that time and place.
Excerpted from In the House of the Law by Judith E. Tucker Copyright © 2000 by Judith E. Tucker. Excerpted by permission.
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|1||The Law, the Courts, and the Muftis||1|
|2||With Her Consent: Marriage||37|
|3||Release Her with Kindness: Divorce||78|
|4||The Fullness of Affection: Mothering and Fathering||113|
|5||If She Were Ready for Men: Sexuality and Reproduction||148|