applied. 109
The second case, marriages contracted where the specified dower was too small, had no parallel in standard sales. Although some ordi- nary commercial transactions were restricted or regulated, such as those deemed speculative or potentially usurious, for the most part no attempt was made to set a minimum (or maximum) price for any goods or ser- vices. Any compensation satisfactory to both parties was adequate. Not so with dower. Though the agreement of the contracting parties, and possibly of the wife herself even if she was not making the contract, was important, the jurists disagreed as to whether such agreement also suf- ficed to determine a legally valid dower. Both Malik and Abu Hanifa considered a minimum dower necessary. Malik, following earlier Medi- nan authorities, held that the minimum acceptable dower was one- quarter of a dinar , or three dirhams, while Abu Hanifa and his followers fixed the minimum at ten dirhams. 110 In a notable difference between Islamic and rabbinic reasoning, there is no differentiation between vir- gin and non-virgin brides with regard to minimum dower amount. This minimum dower amount is sometimes linked to the lowest amount for which a thief’s hand will be amputated. The rationale seems to be that there is an irremediable loss that occurs through consummation, for
which the minimum dower compensates; however, the lack of differen- tiation between virgin and non-virgin brides means that this loss can- not be defined as the loss of an intact hymen. 111
Against Malik and Abu Hanifa, Shafi ' i opposed a minimum dower. Asked in the Ikhtil a f M a lik wa © l-Sh a fi ® i about “the smallest permitted dower,” Shafi ' i’s rebuttal to Malik drew on a parallel to sale: “The dower is a price (thaman) among prices, so whatever they consent to as a dower that has a value (q i ma) is permitted, just as whatever a buyer and seller (mutab a © i ® a n) of anything that has a value [agree to] is permitted.” 112 Elsewhere, he directly compares marriage and the purchase of a female slave for sex: “Some of the companions of Abu Hanifa said: We find it objectionable that a [woman’s] sexual organ (farj) be made permissible so cheaply (bi shay © yas i r). We said, What is your view if a man buys a slave girl for a dirham, is her sexual organ lawful to him? They said: Yes. We said: You have permitted a sexual organ and added [ownership of] the [slave girl’s] body for a trifle.” 113 Shafi ' i’s answer here relies on the sameness and the difference between a wife and a slave girl. The essential similarity between two otherwise different women hinges on the transaction conveying sexual licitness for compensation. Shafi ' i’s overt point in his argument against Abu Hanifa is that there is no mini- mum amount for licit access to a woman’s sexual organ. There is noth- ing inherently wrong with conveying sexual dominion cheaply if one can buy a slave girl for a dirham and be entitled to sex with her. But to accept his argument requires one to conclude that one acquires some- thing more valuable in buying a slave girl than in marrying a wife. A slave’s purchaser comes to own her entire body; a husband acquires substantially more limited access rights over his wife. If one pays only one dirham for a slave girl and gets not only rights to sex but also own- ership of her body, access to a wife ought to be worth less than that. If one presumes that access to a wife is worth more than access to a slave, Shafi ' i’s argument does not hold up. In the last analysis, the success of this comparison rests on the interchangeability of women as sexual outlets.
Exchange marriage (shigh a r), an irregular type of marriage speci- fying a “nondower,” confirms a dower’s legitimating function with re- gard to sex at the same time as it shows the jurists’ concern with ensur- ing brides’ property rights over and above their bodily rights. Apparently an accepted pre-Islamic
The second case, marriages contracted where the specified dower was too small, had no parallel in standard sales. Although some ordi- nary commercial transactions were restricted or regulated, such as those deemed speculative or potentially usurious, for the most part no attempt was made to set a minimum (or maximum) price for any goods or ser- vices. Any compensation satisfactory to both parties was adequate. Not so with dower. Though the agreement of the contracting parties, and possibly of the wife herself even if she was not making the contract, was important, the jurists disagreed as to whether such agreement also suf- ficed to determine a legally valid dower. Both Malik and Abu Hanifa considered a minimum dower necessary. Malik, following earlier Medi- nan authorities, held that the minimum acceptable dower was one- quarter of a dinar , or three dirhams, while Abu Hanifa and his followers fixed the minimum at ten dirhams. 110 In a notable difference between Islamic and rabbinic reasoning, there is no differentiation between vir- gin and non-virgin brides with regard to minimum dower amount. This minimum dower amount is sometimes linked to the lowest amount for which a thief’s hand will be amputated. The rationale seems to be that there is an irremediable loss that occurs through consummation, for
which the minimum dower compensates; however, the lack of differen- tiation between virgin and non-virgin brides means that this loss can- not be defined as the loss of an intact hymen. 111
Against Malik and Abu Hanifa, Shafi ' i opposed a minimum dower. Asked in the Ikhtil a f M a lik wa © l-Sh a fi ® i about “the smallest permitted dower,” Shafi ' i’s rebuttal to Malik drew on a parallel to sale: “The dower is a price (thaman) among prices, so whatever they consent to as a dower that has a value (q i ma) is permitted, just as whatever a buyer and seller (mutab a © i ® a n) of anything that has a value [agree to] is permitted.” 112 Elsewhere, he directly compares marriage and the purchase of a female slave for sex: “Some of the companions of Abu Hanifa said: We find it objectionable that a [woman’s] sexual organ (farj) be made permissible so cheaply (bi shay © yas i r). We said, What is your view if a man buys a slave girl for a dirham, is her sexual organ lawful to him? They said: Yes. We said: You have permitted a sexual organ and added [ownership of] the [slave girl’s] body for a trifle.” 113 Shafi ' i’s answer here relies on the sameness and the difference between a wife and a slave girl. The essential similarity between two otherwise different women hinges on the transaction conveying sexual licitness for compensation. Shafi ' i’s overt point in his argument against Abu Hanifa is that there is no mini- mum amount for licit access to a woman’s sexual organ. There is noth- ing inherently wrong with conveying sexual dominion cheaply if one can buy a slave girl for a dirham and be entitled to sex with her. But to accept his argument requires one to conclude that one acquires some- thing more valuable in buying a slave girl than in marrying a wife. A slave’s purchaser comes to own her entire body; a husband acquires substantially more limited access rights over his wife. If one pays only one dirham for a slave girl and gets not only rights to sex but also own- ership of her body, access to a wife ought to be worth less than that. If one presumes that access to a wife is worth more than access to a slave, Shafi ' i’s argument does not hold up. In the last analysis, the success of this comparison rests on the interchangeability of women as sexual outlets.
Exchange marriage (shigh a r), an irregular type of marriage speci- fying a “nondower,” confirms a dower’s legitimating function with re- gard to sex at the same time as it shows the jurists’ concern with ensur- ing brides’ property rights over and above their bodily rights. Apparently an accepted pre-Islamic
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