justify his view, he makes a comparison to the
purchase of a female slave. “Can you not see,” he presses, “that if a man ordered [another] man to purchase so-and-so’s slave girl for him for 1,000 dirhams, and [the representative] bought her for him for 2,000, and he knew [that his representative had paid 2,000] and he took her and had sex with her and had privacy with her, then he did not want to pay anything except the 1,000 for her, he could not do that?” 103 Ibn al- Qasim clearly expects his questioner to accept his logic in the case of the female slave. He assumes that once the rule has been clarified for the purchase of a slave, its application to marriage will be self-evident. Al- Muzani applies the same principle in reverse in his Mukhta s ar, quoting a verdict in the case of marriage, which “indicates that” the same rule ap- plies to the purchase of a female slave. 104
Dower was both like and unlike (other) prices and, by extension, marriage was and was not like (other) commercial transactions. In an ideal scenario, a bride received a dower of a specific item or amount, agreed on in advance, of value equal to or greater than her fair dower (mahr al-mithl), which was calculated with reference to her female rela- tives as well as the standards of her premarital place of residence, and adjusted upward or downward to account for her personal qualities, such as beauty, virginity, and wealth. As usual, though, the legal texts deal mostly with departures from the ideal.
Three scenarios follow in which some legal flaw with the dower required remedy—the parties failed to specify a dower, the dower was set below the bride’s fair dower, or the fixed dower was invalid. The varying treatments of these irregularities reveal hermeneutical strate- gies and assumptions, the limits of parallels between marriage and slavery, and the crucial connection between money and milk over the marriage tie.
The first type of irregularity—the lack of a fixed amount—presents the clearest contrast between marriage and sale. Failure to specify a dower at the time of contract had no bearing on the validity of the mar- riage contract. 105 (The spouses could either come to an agreement later or, if they could not agree, the wife would be due her fair dower if the marriage were eventually consummated; if they parted before con- summation with no dower set, she would not receive anything except a “consolation” gift.) 106 In direct contrast, in the case of a sale, the lack of a specified price caused the transaction to be canceled. In characteriz- ing marriage as not a sale, Yves Linant de Bellefonds seizes on Shafi ' i’s
assertion that marriage is not like a sale because dower is not like a price: a sale without a specified price is always null and void, whereas a marriage that leaves the dower unspecified is generally valid. 107
Though de Bellefonds is correct in saying that this is a clear in- stance of how marriage was not like sales (or other sales), juristic discus- sions began from the presumption of similarity rather than difference. Though “the marriage is permitted and she is due her fair dower,” the Kit a b al- H ujja proclaims that had it been “a sale or some other type of pecuniary transaction (wa law k a na f i bay ® aw ghayrihi min al-ij a r a t) and a man purchased [something] without a price or leased [something] without a fixed compensation (ajr), that [would] not be permitted.” 108 For Shafi ' i also, the sameness of dower and price needed no justifica- tion; rather, any departure from the application of the rules governing sales to marriages required explanation. Shafi ' i defends his stance on the validity of marriage without a specified dower to an imagined in- terlocutor who points out that “you [i.e., Shafi ' i] generally apply rules for sales to marriage (wa anta ta h kumu f i c a mmat al-nik ah a h k a m al-buy u ® ) .” He explains his reasoning precisely when commercial rules are not
purchase of a female slave. “Can you not see,” he presses, “that if a man ordered [another] man to purchase so-and-so’s slave girl for him for 1,000 dirhams, and [the representative] bought her for him for 2,000, and he knew [that his representative had paid 2,000] and he took her and had sex with her and had privacy with her, then he did not want to pay anything except the 1,000 for her, he could not do that?” 103 Ibn al- Qasim clearly expects his questioner to accept his logic in the case of the female slave. He assumes that once the rule has been clarified for the purchase of a slave, its application to marriage will be self-evident. Al- Muzani applies the same principle in reverse in his Mukhta s ar, quoting a verdict in the case of marriage, which “indicates that” the same rule ap- plies to the purchase of a female slave. 104
Dower was both like and unlike (other) prices and, by extension, marriage was and was not like (other) commercial transactions. In an ideal scenario, a bride received a dower of a specific item or amount, agreed on in advance, of value equal to or greater than her fair dower (mahr al-mithl), which was calculated with reference to her female rela- tives as well as the standards of her premarital place of residence, and adjusted upward or downward to account for her personal qualities, such as beauty, virginity, and wealth. As usual, though, the legal texts deal mostly with departures from the ideal.
Three scenarios follow in which some legal flaw with the dower required remedy—the parties failed to specify a dower, the dower was set below the bride’s fair dower, or the fixed dower was invalid. The varying treatments of these irregularities reveal hermeneutical strate- gies and assumptions, the limits of parallels between marriage and slavery, and the crucial connection between money and milk over the marriage tie.
The first type of irregularity—the lack of a fixed amount—presents the clearest contrast between marriage and sale. Failure to specify a dower at the time of contract had no bearing on the validity of the mar- riage contract. 105 (The spouses could either come to an agreement later or, if they could not agree, the wife would be due her fair dower if the marriage were eventually consummated; if they parted before con- summation with no dower set, she would not receive anything except a “consolation” gift.) 106 In direct contrast, in the case of a sale, the lack of a specified price caused the transaction to be canceled. In characteriz- ing marriage as not a sale, Yves Linant de Bellefonds seizes on Shafi ' i’s
assertion that marriage is not like a sale because dower is not like a price: a sale without a specified price is always null and void, whereas a marriage that leaves the dower unspecified is generally valid. 107
Though de Bellefonds is correct in saying that this is a clear in- stance of how marriage was not like sales (or other sales), juristic discus- sions began from the presumption of similarity rather than difference. Though “the marriage is permitted and she is due her fair dower,” the Kit a b al- H ujja proclaims that had it been “a sale or some other type of pecuniary transaction (wa law k a na f i bay ® aw ghayrihi min al-ij a r a t) and a man purchased [something] without a price or leased [something] without a fixed compensation (ajr), that [would] not be permitted.” 108 For Shafi ' i also, the sameness of dower and price needed no justifica- tion; rather, any departure from the application of the rules governing sales to marriages required explanation. Shafi ' i defends his stance on the validity of marriage without a specified dower to an imagined in- terlocutor who points out that “you [i.e., Shafi ' i] generally apply rules for sales to marriage (wa anta ta h kumu f i c a mmat al-nik ah a h k a m al-buy u ® ) .” He explains his reasoning precisely when commercial rules are not
Similar Books
