Marriage and Slavery in Early Islam
function, it did not play a prominent role for the early jurists. Analogy, however, filled a significant need. Many situations were not directly addressed by rev- elation or prophetic precedent. By allowing the extension of a ruling from one case to another via a shared underlying rationale ( ® illa, ratio legis), analogy extended the jurists’ reach far beyond the texts while allowing them to conceptualize their project as applying revelation to life.
    An analogy requires an essential similarity that allows for com- parison, but it also requires difference: if things were actually the same, analogy would be unnecessary, as there would be identity. In this re- spect, analogy is much like metaphor. But the legal domain of analogy requires a more precise mapping of one decision onto another, often to the exclusion of other possible “targets.” The fact that things are ana- logous in some respects does not mean that they are so in every re- spect. An example from the realm of divorce can clarify this. In a Hanafi discussion of a wife’s option of divorce, beginning or resuming travel causes her to lose her right to choose. The jurists affirm, in their discussion of various modes of travel, that “a boat is like a house.” 101 That is, the forward motion of the boat does not constitute a deliberate progression on the woman’s part that implies a rejection of her choice.
    To take this analogy to mean that a boat is a house or that all the regu- lations applying to houses also apply to boats would be ludicrous.
    With marriage and sales, the question of how far the analogy stretches is trickier, in part because of the jurists’ consistent recourse to comparisons. Despite the likening of marriage to purchase and a wife to a concubine, a wife was not—and could by definition never be—her husband’s slave. Not only was she due marital rights far beyond those due to enslaved persons from their owners, though different from and lesser than those granted to her husband, but the two types of milk could not be combined. (This will be addressed further in Chapter 5.) Yet marriage and slavery both made a woman sexually lawful. Of par- ticular significance is payment associated with a husband or master’s dominion. Both dower and the purchase price of a female slave com- pensate for exclusive licit access to and control over a particular woman’s sexual capacity. The obligation to pay dower correlates to sexual law- fulness in marriage, just as the purchase of a slave conveys sexual lawfulness—provided that other necessary criteria, such as proper con- sent and the absence of impediments, are also fulfilled.
    Given the ubiquity of commercial terminology and the notion of sale as the paradigmatic transaction, comparisons between dower and price were practically inevitable. An outline of the basic rules govern- ing dower will help clarify the underpinnings as well as the limits of legal parallel between dower and a purchase price. The jurists accepted a crucial distinction: marriage contracted for an unspecified dower was valid, whereas sale contracted without a fixed price was void. Nonethe- less, they drew heavily on the regulations established for sales (espe- cially of female slaves) to remedy this and other irregularities with dow- ers. In the frequent analogies made between marriage of a woman and purchase of a slave, the jurists likened the wife to a slave, the husband to the master, and the dower to the purchase price.
    In one scenario reported in the Mudawwana, a man sends a repre- sentative to marry him to a woman for a dower of 1,000 dirhams. The representative dutifully contracts the marriage, but for twice that amount. Sahnun asks Ibn al-Qasim whether in Malik’s view the husband owes the entire 2,000 dirhams. 102 Ibn al-Qasim answers, in accordance with Malik’s logic, that the husband must pay the entire amount if he con- summated the marriage despite knowing that his representative had set a higher dower. To

Similar Books

The Clearing

Dan Newman

Dead Funny

Tanya Landman

Where Love Takes You

Rosemary Smith

Bare Witness

Katherine Garbera

The Small BIG: Small Changes That Spark Big Influence

Steve J. Martin, Noah Goldstein, Robert Cialdini

Banquet on the Dead

Sharath Komarraju

The Tree

Judy Pascoe