- Marriage and Slavery in Early Islam by Kecia Ali
The early history of Muslim law is the framework of this book—to which, incidentally, it provides an accessible introduction for nonspecialists. It is a field that calls for a command of difficult forms of medieval Arabic, the language used by early Muslims of all mother tongues in legal debate and writing, and the ability to identify and interpret terse and allusive forms of argument. Most studies of the subject are concerned with how different schools developed jurisprudential tools and concepts; this book considers not a technical or epistemological but a social issue: how “marriage, divorce, and the reciprocal but gender-differentiated obligations of husbands and wives” (1) was dealt with in ninth-century legal theory. Above all, as its title says, it connects two legally analogous phenomena, marriage and slavery, and their structural and functional similarities in society, or at least in the households and kin groups of urban ninth-century Iraq. This has not been done before in a serious and sustained way in the Western academy, and the author’s focus on family and domestic (as opposed to military) slavery is itself a novelty: kin and household are Cinderella topics in early Islamic history and are seldom integrated into wider discussions. To this she adds the further perspective of contemporary Muslim interpretations of what are taken to be the core historical principles of Muslim family law; the question of how contemporary Muslim women, feminists included, can see medieval legal theory as a source of justice and dignity (189); and how modern scholars, Muslim and Western, discuss issues of gender rights in relation to early law. These are things that it can be difficult to engage with coolly; the author has done so with equal skill and scholarship at both ends of the historical spectrum. The endnotes and index (in which key Arabic terms are given their English equivalents, and legal subtopics are listed in English under the main headings) are fully accessible to those with no knowledge [End Page 123] of Arabic or legal thinking. This book has been thoughtfully designed to engage, and will stimulate readers from many fields.
A difficulty that all historical studies of law have to tackle is the differences between legal prescription, legal practice, and social practice. To this Ali adds that “diversity of doctrine within and between normative texts” should also be taken into account (3). Here are examples of how she bridges some of these gaps and sets the historical scene while preparing the reader for detailed discussion of specific legal texts: “The jurists showed no hesitation in making analogies between wives and slaves or between marriage and commercial transactions. … Discussing slavery in tandem with marriage will strike some readers as deliberately provocative. Ownership terminology and imagery may offend or bewilder. It would have been unexceptionable to early Muslim audiences, for whom both life and law were saturated with slaves and slavery.” Yet “slaves were not only chattels. They could also be legal subjects … [and slavery] was central to the jurists’ conceptual world. In particular, it affected how marriage and gender were thought about. There was a vital relationship between enslavement and femaleness as legal disabilities, and between slave ownership and marriage as legal institutions” (6–8). And although “[this book] argues for understanding early Muslim legal texts as expressions of a technical discourse, bound by its own internal logic and need for systematization and consistency,” nevertheless “the legal-methodological imperatives driving the production and defense of legal doctrine cannot be divorced from their end product: a hierarchical framework for marriage and sexuality” that presses “for uniformity in the legal claims of wives” at the same time as it “opens the rights and duties of husbands even to slaves.” Thus, “sexuality becomes the key realm for the construction of masculinity and femininity” (26). As for doctrinal diversity, Ali concludes that “formative-period jurists shared presuppositions about marriage, kinship, and slavery despite their sometimes heated disagreements on specific points of law” (189).
What wider perspectives does this study...