Marriage and Slavery in Early Islam (review)

In her Introduction, Kecia Ali states that her book, Marriage and Slavery in Early Islam, will focus on three main issues: the diversity of opinion in early legal thought, the influence of hierarchical social structures on the jurist's vision of marriage, and the role of polemical exchange in the refinement of legal doctrine (1). This contribution is part of a surging output of academic works that deal with the Islamic legal system. However, while most recent academic works compare doctrine with the actual practice of the law, this book studies the diversity of doctrine within and between normative texts, offering thus an analysis of the jurists' conceptual system. Examining how discourses on marriage have evolved "allows a fuller understanding of ongoing normative discussions about marriage in Islam" (5). Ali analyses early texts from three major Sunni legal schools: the Maliki, the Hanafi, and the Shafi'i. Aware that it is hard to extract social history from these prescriptive texts, Ali attempts to explicate the jurists' overall coherent vision on marriage as well as "the role of jurisprudential dispute in producing doctrinal development" (24). She does this partially by depending, for her theoretical and comparative framework, on Rabbinic Jewish law on marriage and slavery.

Ali's main contention is that the use of analogy between marriage and slavery is key to understanding Muslim marriage law, as is clear in the frequent analogies that the jurists made between wives and slaves and between marriage and commercial transactions. It seems that slavery affected the entire legal understanding of marriage as it was central to the jurists' conceptual world (8). Early Muslim jurists saw marriage as a transaction that gave a husband, in return for payment, a type of control or dominion (milk) analogous, albeit limited, to a master's power over his female slave: "The connection between milk and lawful sexuality stands at the core of all regulations of marriage and divorce..." (12).

The first chapter, "Transacting Marriage," addresses the parallel between contracting marriage and buying a slave. It discusses consent to marriage, the marriage contract, and the dower. While everyone agreed that fathers had the power of compulsion over children of both sexes, it is only with regard to enslaved males and females that serious discussion of consent occurs (32). The authority of fathers, like that of slave owners, was critical for these thinkers, who framed "all social relationships within hierarchical and patriarchal kinship structures" (38). However, in contrast to the male slave and the free female, sexual and marital self-determination of any sort was not available to an enslaved female. At stake was women's legal capacity. Money also figures in the marriage transaction and Ali repeats her central argument of the "overlapping linguistic, conceptual, and legal parallels between marriage, slavery, and ownership" (50). In this context, the move to analogy is made between marriage to a woman and purchase of a slave, with the dower being the purchase price.

The second chapter, "Maintaining Relations," focuses on the subject of maintenance and support in return of sexual availability. For analytical purposes Ali chooses the case of a married female slave who combines aspects of the free wife and the enslaved concubine. The bride's readiness for sex was a prerequisite for maintenance and continuous support was predicated on the wife's continuing availability as a sexual partner (75-8). The final section provides divergent views on whether a woman could obtain divorce from a non-supportive husband. The third chapter, "Claiming Companionship," deals with women's sexual rights and the gendered nature of the right to ask for or decline sexual activity (99). Here the author detects an underlying agreement as to women's right to time and support and men's right to sex despite a difference in tone between the various legal texts. Ali shows that the jurists agreed that wives had few enforceable sexual claims after consummation: Polygyny was normative, and the relevant category as far as...