Marriage and Slavery in Early Islam Read Online Free PDF

core contentions that the use of anal- ogy, in particular the analogy between marriage and slavery, is key to understanding Muslim marriage law. The strict gender differentiation of marital rights, the importance of women’s sexual exclusivity, and
    above all the strict imposition of rules about unilateral divorce, how- ever contested in practice, all facilitate and flow from the key idea that marriage and licit sex require male control or dominion. Analogy makes this possible.

    In this book, I analyze early texts from what would become three major Sunni legal schools: the Maliki, the Hanafi, and the Shafi ' i. I have left out the Hanbalis. Ibn Hanbal (d. 241/855), who knew Shafi ' i, kept aloof from the types of debates taking place here. Though analogy eventually found a place in later Hanbali legal theory, it was deeply suspect to Ibn Hanbal and his early associates. As Christopher Melchert writes, “He staunchly opposed the teaching of law apart from the trans- mission of h ad i t reports, staunchly opposed the collection and transmis- sion of juridical opinions from anyone later than the Companions and Successors—staunchly opposed, that is, both the practice of his ratio- nalistic contemporaries, the nascent Hanafi school (also the nascent Maliki and ?afi ' i schools), and the basis of Sunn i jurisprudence from the tenth century onwards.” 39 Susan Spectorsky’s translation of Ibn Han- bal’s responsa on questions of marriage and divorce demonstrates topi- cal overlap with the concerns of other jurists, but also a constant re- fusal to engage in the what-if scenario spinning that animated their disputations. 40
    The Maliki, Hanafi, and Shafi ' i schools, their major scholars, and their core texts require some elucidation. The Malikis originated in Me- dina, the Arabian city where the first Muslim community was situated. Named after Malik ibn Anas (d. 179/795), the Malikis identify them- selves as the record (and arbiter) of traditional Medinan “practice” (al-
    ® amal ® indan a ), which they view as a vital source of law. The two foun- dational texts to be discussed here are the Muwa tt a © , attributed to Malik, and the Mudawwana, attributed to Sahnun al-Tanukhi (d. 240/855). 41 The Muwa tt a © presents the precedent of Muhammad, the practice of the Medinan community, and often the opinions of respected Medinan jurists, sometimes with Malik’s own views included. A comparatively short work, the Muwa tt a © represents a quite early stage of Medinan/ Maliki jurisprudence, originally dating to the eighth century. 42 A much longer text, the Mudawwana provides an early ninth-century elabora- tion of Malik’s views and those of his predecessors and followers. 43 The Mudawwana purports to reflect conversations between Sahnun and Ibn al-Qasim (d. 191/806), who had studied extensively with Malik. A
    comparison of the Mudawwana with the Muwa tt a © on various points suggests that proponents of Medinan doctrines considered it necessary to substantiate and defend their positions in response to challenges by Iraqi jurists. The Mudawwana reflects these debates, but seldom explicitly.
    If Malik reflected and transmitted the juristic heritage of the Medi- nans, then Abu Hanifa (d. 150/767) stands as the principal representa- tive of the Iraqi school. Iraq was a hotbed of legal thought in the sec- ond/eighth century. Both Ja ' far al-Sadiq—after whom the main Shi ' i legal school is named—and Abu Hanifa, who studied with him, were based there, as was the Kufan jurist Ibn Abi Layla (d. 148/765–766), a rival of Abu Hanifa. Muhammad b. al-Hasan al-Shaybani (d. 189/805) and Abu Yusuf (d. 182/798) were the preeminent disciples of Abu Han- ifa. These men transmitted and refined his doctrines, defending them against his Iraqi and Medinan opponents. Several expository and com- parative or polemical works are more or less securely attributed to Shaybani. In the former category are al-J a mi ® al-Kab i r and al-J a mi ®