Professional Documents
Culture Documents
Discourse
Author(s): Maya Shatzmiller
Source: Islamic Law and Society, Vol. 2, No. 3, Marriage, Divorce and Succession in the Muslim
Family (1995), pp. 219-257
Published by: BRILL
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Abstract
This essay focuses on the implementationof women's propertyrights in al-Andalus
and the Maghribin the period between the tenth and fifteenth centuries, as reflected
in legal sources. An examination of Islamic property and family law, judicial
practice, and the attitude of jurists toward women indicates that the majority of
Muslim women owned property independently at some point in their lives, that
women acquiredpropertyat every stage of the life-cycle, and that women played an
important role in the intergenerational transmission of property and in keeping
familial property intact. At the same time, the legal institutions of guardianship
(wilaya) and interdiction (hajr) placed constrains on the ability of women to
exercise effective control of their propertyduringadulthood.The implementationof
women's shar'l propertyrights by qadis and muftis had importantconsequences for
women's relationships with their families, especially their husbands. That male
domination was never complete in propertied families calls into question the
characterizationof the Muslim family as "patriarchal"and points to the need for a
new social, cultural, and economic explanationof the natureof the Muslim family.
Investigative Framework
THE RIGHTto own property is a fundamental aspect of any economy.
In medieval Europe, the right to own property emerged as an instrumental tool in the agricultural and commercial revolutions and as the
key to business initiatives and capital formation.' The right to own land
in an agrarian-based economy and to retain the proceeds of commercial
real estate transactions and capital generated by commerce and urban
labor created an important incentive for economic activity. Property
*
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MAYA SHATZMILLER
On the use of notarial and other legal documents, see Sources of Social
History. Private Acts of the Late Middle Ages. Papers in Medieval Studies V
(Toronto: Pontifical Institute of Medieval Studies, 1984). On women's labor, see
David Herlihy, Opera Muliebria: Womenand Workin Medieval Europe (New York:
McGraw Hill, 1990); Elizabeth Ewan, "Scottish Portias: Women in the Courts in
Medieval Scottish Towns," Journal of the Canadian Historical Association, N.S. 3
(1992), 27-45.
5 See Ronald C.
Jennings, "Women in Early 17th-CenturyOttoman Judicial
Records-The Sharia Court of Anatolian Kayseri," Journal of the Economic and
Social History of the Orient, 18 (1975), 53-114; Judith Tucker, Women in
Nineteenth-Century Egypt (Cambridge:Cambridge University Press, 1985); Haim
Gerber, "Social and Economic Position of Women in an Ottoman City, Bursa,
1600-1700." International Journal of Middle Eastern Studies, 12 (1980), 231-44;
Bruce Masters, The Origins of WesternEconomic Dominance in the Middle East:
Mercantilismand the Islamic Economyin Aleppo, 1600-1750 (New York: New York
University Press, 1988); Abraham Marcus, The Middle East on the Eve of
Modernity: Aleppo in the Eighteenth Century (New York: Columbia University
Press, 1989).
6 I was
promptedto examine this question by my finding that Muslim women
in the medieval period were active in a variety of trades and occupations and were
represented in strength in the workforce. See Maya Shatzmiller, "Aspects of
women's participationin the Economic Life of Later Medieval Islam: Occupations
and Mentalities,"Arabica, 35 (1988), 36-58. The findings of this researchappearin
my study, Labour in the Medieval Islamic World(Leiden: E. J. Brill, 1994), 347ff.
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221
J. Viguera(Seville:EditorialesAndaluzasUnidas,1989),35-51.
8 Jules Roussier, Professorof Islamic Law at the law faculty of Algiers
University,who wroteon Malikilegal practice,explainedthis paradoxas follows:
The Qur'anencouragesthe Muslimwomanto marry.So long as she is married,she
does not needpropertybecauseherhusbandis supposedto providefor her.Yet the
Qur'anaccordedinheritancerightsto womenbecauseit was necessaryto address
the propertyneedsof unmarried
women,whetherdivorcedor widowed.In orderto
theirinheritance
rightswerelimited.J. Roussier,"La
encouragewomento re-marry,
Receuilsde la societe
femmedansla societ6islamique,droitmalikitemaghribin,"
Jean Bodin, 11 (1959), 225. The culturalandideologicalsignificanceof this issue
deservesa full investigation.I intendto deal with it in a comparativemannerin a
studyof womenandpropertyin MuslimandRenaissancesocieties.
9 See, for example, David M. Schaps, Economic Rights of Womenin Ancient
Greece(Edinburgh:
Edinburgh
UniversityPress,1979).
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MAYA SHATZMILLER
only from her agnatic relatives. A woman remainedunder the guardianship of her fathers or male relatives after marriage;alternatively
she might choose to be transferredto her husband's guardianship.A
woman could not performany transactionwithoutthe involvementof a
tutor.I Her freedomconsistedin her abilityto approachthe senatorsto
appointa tutoror to requesta differenttutor.12Althoughin laterRoman
times, the role of guardianbecame a formality, his consent was still
needed to validate a contract.In the Germaniclaw of the early Middle
Ages, women could not take legal action, appearindependentlybefore
a court, or manage their own wealth; and they were at a disadvantage
with regardto men in the law of succession.13And in fourteenth-century Florence, the ability of women to engage in propertytransactions
was constrainedby male legal guardianshipand by the requirementof
parentalconsent.14
There are, of course,exceptionsto this pattern.One is the positionof
Jewish women in the first centuryA.D. Papyridiscoveredin the Judean
desert indicate that Jewish women had propertyrights greater than
those of their Greek counterparts.5sA woman named Babatha, for
example, owned four prosperousdate orchardsand lent her husbanda
sum of money to provide a dower for his daughter by his first
marriage.16Also exceptional are the Jewish women of eleventh- and
twelfth-centuryCairo.17
The connection between Muslim women's propertyrights and the
institutionsof marriageand the family is a key element of a comprehensive social historythathas yet to be written.The study of women's
propertyrights requires an examinationof family law (marriage,divorce, inheritance,and guardianship),propertylaw (gifts, endowments,
I
Ibid., 105.
12 Ibid.
223
Nineteenth-CenturyEgypt, 6-7.
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MAYA SHATZMILLER
information relating to demography, family structure, marriage contracts, inheritance, and patterns of childbearing and childrearing are
empirically accessible.23
The question of the reliability offatwds is raised frequently enough
by historians to warrant attention. Some scholars maintain that because
many fatwds lack the substantial historical details that would accord
them a cachet of real-life situations, one cannot be certain that they
describe actual cases or that the legal conclusions reported in them were
implemented.24 This view recently has been refuted persuasively by
Hallaq.25 Indeed, historians of the Maghrib and al-Andalus have for a
long time treated fatwas as an important historical source, in part
because Miliki muftis were directly involved in a legal system that
helped to regulate social and economic activities, private and public.26
Scholars such as Ari6, Idris, Brunschvig and Talbi have usedfatwas as
sources to reconstruct the social and economic history of al-Andalus
and the Maghrib.27
23 Huda Lutfi, A Study of Six FourteenthCenturyIqrdrs from al-Quds
Relatingto MuslimWomen,"Journalof the Economicand Social Historyof the
A Historyof Mamluk
Orient, 26(1983), 246-94; idem,Al-Qudsal-Mamlukiyya:
no.
JerusalemBased on the HaramDocuments.Islamkundliche
Untersuchungen,
113, (Berlin:KlausSchwartzVerlag,1985);DavidS. Powers," Fatwdsas Sources
for LegalandSocialHistory,"Al-Qantara,11 (1990),295-341;idem,"TheMaliki
FamilyEndowment:Legal Normsand Social Practices,"InternationalJournalof
MiddleEast Studies,25 (1993), 379-406 (on womenandwaqf, see esp. 382-86,
395, 397). An annotatedbibliographyof aspectsof the historyof the Andalusian
womancanbe foundin La mujeren al-Andalus,17-34.
24 On Andalusian
fatwds and their historical value, see Jos6 L6pez-Ortiz,
225
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MAYA SHATZMILLER
been furthercomplicated by the fact that until 1982, the Mi'yar was
The publicationof the text
available only in manuscriptor lithograph.29
in 1982 by the Moroccan Ministry of Culture and Religious Affairs
(twelve volumes plus a volume of indices) has made its contentsmore
accessible and easier to use.30
The fatwds studied here were selected from chaptersdealing with
marriage (nikdh), exchanges and sales (al-mu'dwaddt wa'l-buyi'),
endowments (ahbas), hire, rent and artisans(ijdra kird' wa'l-sunnd',
nawclzilal-ijcartdt
wa'l-akriyawa'l-sunnd'),and gifts, charitabledonations, and manumission(al-hibct wa'l-sadaqdtwa'l-'itq).My selection
of thesefatwas has been guidedby threecriteria:first,eachfatwd refers
to a distinct mechanism throughwhich a woman becomes a property
owner;second, each deals with a differentaspectof familial dynamics;
third, each fatwt studied here was issued in either eleventh-century
Cordobaor Tunisia or fourteenth-centuryGranadaor Fez. In support
of the evidence foundin thefatwds,wheneverpossible,I cite additional
evidence from two contemporaryMaliki notarialformulariesand from
an archival cachet of propertydeeds registered by fifteenth-century
Granadannotaries. Approximatelyhalf of the fatwds in the abovementionedsections of the Mi'ydr and approximately95 percentof the
Granadandocumentsdeal with problemsrelatingto women. However,
this is not a quantitative study and any conclusions that I advance
shouldbe regardedas provisionaland tentative.
The mustaftis (a technical term for the person who requests an
opinion) andthe muftisgenerallybegin by notingthatthe case relatesto
a woman. Because the legal statusof women differs from that of men,
fatwas are an excellent source of informationabout the treatmentof
women.31 Thefatwds demonstrate how the jurists attempted to establish
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MAYASHATZMILLER
that the dead man had acquired the property on behalf of his
daughter,the heirs had no claim to it.33
(3) Someone asked the Granadanmuftf, Abu Sa'id Farajb. Lubb
al-Shatibi(d. 1380), about a woman (mar'a), that is, about a minor
girl who was underthe guardianshipof her father(ft wilayat abtlh).
The girl received some propertyas a gift from her father and, with
his consent, designatedthe propertyas an endowment.Ibn Lubbrespondedthatthe creationof the endowmentwas invalid (yufsakhaltahbfs) because a father cannot alienate propertybelonging to his
minor daughterwithout offering a substitute('iwa.). According to
Miliki jurists, Ibn Lubb continued, if someone gives his child a
house or land as a charitable gift (sadaqa), the gift becomes the
property of the child.34 If, by consenting to the creation of the
endowment, the father was acting as if he were the founder, his
action is invalidbecausehe no longer owned the property;similarly,
if the girl "puther hand"(bdsharat)directlyon the property,acting
as if she were the founder,her action is invalid because she was a
minorunderinterdiction(ma.hjra).35
Like the otherlaw schools, the Malikis allow an individualto make
a gift to membersof his family in an attemptto circumventthe inheritance rules. Like the Hanafis but unlike the other schools, the Malikis
requirethe physicialtakingof possession(hiycza)of the gifted property
in order for ownership to transfer.36Once a donor makes an offer to
give (rjab) and the donee accepts it (qabul), the right of acquisitionis
complete and the donee may take possession even withoutthe permission of the donor.The mode of takingpossession varies in accordance
with the nature of the gift. Once the means of taking possession has
been made available, as, for example, by handingover keys to a box,
the taking of possession is valid. The mere abandonment of the
33 Ibid. See also, Lucie Bolens, "Les parfumset la beaut6en Andalousie
m6dievale(XIe-XIIIesiecles),"Les soins de beaute.Actes du IIIeColloqueInternational,Grasse1985(Nice, 1985), 145-69.
34 Schacht, Introduction, 158: "the charitablegift (sadaqa) is treatedas a
donation,exceptthatit cannotbe revoked."Ibn'Arafaheldthatownershipremains
with the donor.see Powers,"TheMalikiFamilyWaqf,"382.
35 Mi'yr, vol. 7, 274.
36 On the Hanafis,see al-Sarakhsi,Kitdbal-Mabsut(Cairo, 1324H.; repr.
Beirut:Dar al-Ma'rifa,1398H.),vol. XII, p. 48: thumma'l-milk
ld yathbutufi'lhibat bi'l-'aqd qabla'l-qabd 'indand. On the same page, al-Sarakhsi mentions a
229
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dukhdl).41 There is a disagreement over how long this period of interdiction continues after the marriage, ranging from one to seven years.
After marriage, a woman's freedom to dispose of her property
remains limited to one-third of her assets. If a married woman makes a
gift or manumits a slave, Ibn Juzayy explains, and the value of the gift
exceeds one-third of her property, one view holds that the excess is
void, while another view holds that the entire transaction is void. Ibn
Juzayy states that a married woman can spend all of her money in return for a consideration (bi-'iwad). If she makes her husband the beneficiary of all of her property and allows him to derive profit from it, she
cannot dispose of it, with or without a consideration, unless he permits
her to do so.42 As we shall see, a husband can have his wife interdicted
and may request the complete annulment of her right to dispose.
The determination of if and when hiydza occurred played an
important role in the resolution of disputes over gifts. For this reason,
both the notarial models for gift transactions and the Granadan gift
deeds contain a clause in which the donee acknowledges having taken
possession of his gift. A Mgliki notarial formulary from eleventhcentury al-Andalus provides samples of hiydza documents and other
43 Ibn Mugith,al-Muqni',308.
44 LuisSeco de Lucena,Wathd'iq'arabiyyagharndtiyya.
DocumentosAribigoGranadinos,
(Madrid,1961), 145.
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47 Ibid.,vol. 9, 150.
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of divorce, the wife is entitled to the unpaid portion. The second model
provided by Ibn Mughith deals with a case identical to the one
contained infatwd (5).52 A father made a donation (nihla) to his virgin
daughter who was under his interdiction and guardianship, at the time
of the signing of her marriage contract to the groom, of a specific
house, in its entirety, including all rights and benefits, of known value;
for this reason he substracted the value of the house from her dower,
immediate and deferred (rafa'a lahd fl mahrihd mu'ajjalahu wamu'ajjalahu). It is also possible that the invalidation of the Tunisian
custom to give the husband the value of the wife's dower or trousseau
in the form of a house had to do with the fact that in thisfatwd (5), only
a life-interest ('umra) in the house was given and this interest had to be
returned to the donor after the death of the beneficiary.53
A father's control over his daughter's dower and trousseau clearly
had a negative effect on her economic independence and status in the
family; such control might continue into the marriage and could be
reimposed by both a father and a husband. A document in the tenthcentury notarial manual of the Cordoban jurist, Ibn al-'Attr, demonstrates how a father can interdict his married daughter.54 The father
testifies in the presence of witnesses that, having taken notice of his
married daughter's incompetence (safah) and failure to look after her
affairs (sa'i nazarihd li-nafsihd), he is placing her under interdiction
(hajr) and assuming the status of her guardian (wildya). The witnesses
must acknowledge that she has been married to her husband for two or
three years. In his supplementary fiqh explanation, Ibn al-'Attar indicates that the father's interdiction of his daughter may continue until the
eighth year of marriage, at which time it expires whether he liberates
her or not.
In this section, we have considered the second stage at which
women acquire property, namely, the moment of marriage. A father
customarily gives his daughter a trousseau, and a husband provides a
dower (mahr or saddq) for his bride. This moment may be fraught with
tension, usually within the triangle composed of daughter, father, and
52 Ibid.,79-82.
53 For a formulafor an 'umra gift of a house,see Ibn Mughith,al-Muqni',
334-35. On the nature of the 'umra gift, see Schacht, Introduction, 158: "Archaic
Corriente(Madrid:Majma'al-Muwaththiqin
al-Majriti,1983),339-40.
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RIGHTS
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RIGHTS
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woman with regardto her property.We have seen that women do not
automatically emerge from interdiction(hajr) upon marriage.In the
cases examinedhere,the wife's freedomto sell or gift propertyrequired
her guardian'sapprovalif she was still subject to interdiction,which
normally was the case during the first year of marriage-unless her
guardianhad liberatedher in the presence of witnesses. The fact that
the muftisrecommendthatdocumentsbe verifiedby witnesses pointsto
theirrelianceon a sophisticatedsystemof notarization.
A propertysale between husband and wife registered in Granada
during the late fifteenth-centuryindicates that separationof property
between spouses was indeed practiced.61As in any sale document,the
notary identifies the two parties,the propertysold, the price paid, the
validation of the transaction by taking possession (qabd), and the
conferringof completeownershiprights.Anotherdocumentin the same
collection, also from Granada, dated 1495, mentions a gift from a
husbandto his wife of 220 silver dinars.62Concernfor the welfare of
daughterswas a common motive in making propertydecisions. In a
last will and testament (wathlqa) from fifteenth-centuryGranada, a
mother providedfor her daughtersby purchasingwheat, flax, grains,
oil, honey, barely andflourfor them.63
In spite of the limitations on their control of property, married
women appearin great numbersin the legal sources, freely disposing
of theirproperty.Fatwds describinggifts from a motherto her daughter
or daughters demonstratehow propertydescended directly from the
controlof one female to anotherin the next generation.Whetheror not
such a gift was intendedto circumventthe inheritancerules, it necessarily reducedthe size of the estate and thereforemight result in legal
action. By invalidating the mothers' actions and criticizing them for
their failure to secure the appropriatedocumentsand use them at the
appropriatemoment,the jurists were not necessarily manifestinghostility towardmothers,but perhapsmerely upholdingthe legal normby
protectingthe daughter'sright to obtainher divorce and her children's
rightto theirinheritance.Nonetheless,thefatwdspointto an outcomein
which women forfeited property to males in a court dominated by
males.
61 Seco de Lucena,
Watha'iq, 113.
62 Ibid., 94
63 Ibid., 98.
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Wivesand Husbands
Wages
The law holds that wages are due under certain circumstances,
specifically, if the services renderedare absolutelynecessary.Whether
or not a husbandis entitledto wages for servicesrenderedto his wife is
anothermatter:
(9) The Granadanmufti, Ibn Lubb, was asked about a husband
who, afterrepresentinghis wife in the division of an inheritanceand
securingher share, sought to collect wages (ujra) for his labor.The
muftiruledthatno wages were due for normaleffortsexpendedby a
husbandin pursuitof his wife's interests.However, if the husband
invested greaterthannormalefforts in securingher entitlement,she
was liable for the expenses, because he neglected his own financial
interests(maslaha) on her behalf. If he undertookthis task without
notifying her that he might seek some compensation (min duna
shay'), then he had committedhimself, and no payment was due.
(The fatwa does not contain any details about the nature of the
estate, the location of the properties,the date of the dispute, or the
amountof compensationsought).64
A second case in which a husbandrepresentedhis wife in a division of
inheritancehad morefar-reachingimplications:
(10) An anonymous fatwd mentions a husband who received a
mandatefrom his wife to claim her share of an inheritance.65The
husbandclaimed and received his wife's share,and later purchased
it from her. Subsequently,he initiateda litigationon the groundthat
the shareshad not been properlycalculated.After he won the case,
his wife approachedhim requestinga supplementto the share she
had received (she may have felt that her husbandhad cheatedher).
The jurist who was consulted about this case confirmed the husband's right to demand a second division, but rejected his wife's
claim that she was entitled to a supplement. The mufti drew a
distinctionbetween the two acts: The wife sold a determined,welldefinedproperty;that sale was completeand terminatedher rightsin
64 Mi'ydr, vol. 8, 368; on Ibn Lubb and his fatwas, see J. L6pez-Ortiz,
84-85.
"FatwasGranadinas,"
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heritance law, see David S. Powers, Studies in Qur'an and Hadlth: The Formation
241
Mi'ydr. vol. 8, 290. Idris. "Le mariage en Occident musulman," 163, cites
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wife to her husband, and the transactionis valid even if the husband
does not take possession (qab.d),as requiredin the case of a general
gift.77Infatwds (13) and (14), the mufttsrespectedthe declaredintentions of the wife/donor and awardedthe husbandfull ownershipof the
gifted properties,despite doubts that were raised about the legality of
the gifts. By allowing a wife's gift to her husbandon the groundthat it
respectsher wishes, withoutasking any questions,thejuristsfacilitated
the control of the wife's property by the husband. This trend is
reinforcedby the Maliki rule that a wife may not dispose of more than
one-third of her property.78The complex nature of gifts between
husbands and wives is compounded by other factors. Although the
principle of separationof spousal propertywas upheld in al-Andalus,
some women gave their husbands the right to exploit their property.
Accordingto Ibn Juzayy,if a wife gives her husbandthe right to enjoy
the usufructof her property(imtd), as is the custom (mdjarat al-'da)
in al-Andalus,it cannot appearas a conditionin the marriagecontract;
the gift is valid only if it is performedvoluntarily(tatawwu'an) and
subsequentto the validationof the contract.79
The Granadancollection of notarizeddeeds containstwo examples
of propertygifts from husbandto wife. The first document,dated 1485,
specifies the names of the couple andthe amountof the gift, thatis, 220
silver dinars from the new mint and a gold brocade held by a third
person.80The witnesses testify that the wife accepted the husband's
offer and took possession of the gift. The second document,in which a
house is gifted, specifies the location of the house, the grain in it, and
the water source next to it; it is noteworthythat a afaqfh took possession of the propertyon behalf of the wife.81 Although it is not clear
what necessitated these gifts, in other cases gifts reflect an economic
reality: al-Andalus was a traditional agrarian society in which land
245
mustbe acknowledgedby witnesses, as evidencedin a notarizeddocument from Granada,written in 1485, in which a son confirms that he
and his late father undertookirrigationwork and constructionin his
mother'sorchard.83
At the otherend of the "gifting"spectrum,wives gift theirpropertyto
their husbands, including the deferred portion of their dower.84In
fatwds (13) and (14), wives chose not to retainownershipof fields and
irrigation rights and, by divesting themselves of such assets, were
conceding economic power. Although it is not immediately apparent
why a woman would gift some or all of her propertyto her husband,
includingher futuresecurityin the event of divorceor widowhood,this
seems to have been a commonpractice.The notarialevidence indicates
that social and economic realitiesmight make it necessaryfor property
to be transferredfrom a husbandto a wife as well as from a wife to a
husband.The lattertype of transfermay be explained by the fact that
the propertyprobablywas bettermanagedby the husband;if the wife
had retained it, she would have had to hire laborers to irrigate the
fields. The gifts may also have facilitatedthe subsequentinheritanceof
the propertiesby the women's children.
Claimingthe mahrfromthe husband'sheirs
The delayedportionof the dower,due upon dissolutionof the marriage
througheitherdivorceor deathof the husband,sometimesprovedhard
to collect.85 Two fatwds, one from the Maghrib, the other from alAndalus,attestto the need to call uponjuriststo upholdthe law.
(15) Al-Waghlisi (d. in the centralMaghrib,786/1384) was asked
about a widow who wanted to collect her mahr from grain that her
husbandhad left in storage; it was estimatedthat the value of the
grain was equal to or less than the amount of the debt. Was it
of the estate to instructthe widow to
acceptablefor the administrator
take what she was owed and leave the rest for charity(khudhlhifi
mahriki wa-md baqiya fa'truklhi lilldh)? Or should the grain be
removed from storageand weighed so thatits value could be determined (weighing is a pre-requisitefor the qabd of fungible goods)?
The mufti respondedthat it was illegal to compensate the woman
without weighing the grain and calculating her exact entitlement;
83 Ibid., document no. 56, p. 99.
84 This last
is discussed in the next section.
85 Idris, "Lequestion
mariage," 161.
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MAYA SHATZMILLER
The division of the dower into two portions,one given to her before
the wedding (naqd), the other delayed (kali') until a pre-determined
86 Mi'ydr, vol. 5, 89.
87 Ibid., vol. 5, 99.
88 See Ibn
Zayd al-Qayrawani,Rissla, 90-91. The increasing importanceof the
dowry can be seen by the detailed discussion of its nature as property and how it
affects the validity of a marriage.
89 On different kinds of dowries which qualify and disqualify a marriage, see
Khalil, Abrdgd, vol. 2, 44-62. Ibn Juzayy, Qawanin, 152-55. On the differences
between the Maliki and the other schools in this respect, see Linant de Bellefonds,
Traite, vol. 2, 199ff.
90 Ibn Juzayy, Qawanin, 153; Linant de Bellefonds, Traits, vol. 2, 218-19.
91 Dardir-Dasiqi, Sharh, vol. 2, 303. See above (discussion of Daughters
versus Fathers and Husbands).
247
Ibid. 68-69.
Ibid., 69-70.
Ibid., 70.
Ibid., 71-71.
Seco de Lucena, Wathd'iq, document no. 4, pp.8-9, document no. 61, pp.
104-06.
98 The silver dinaror dinar 'ashriyya was in use in Granadaduringthe
fifteenthcentury.Equivalentto ten silverdirhams,it servedas a usefulalternative
to the heavy gold dinar. See R. Arie, L'Espagne musulmaneau temps de Nasrides
(1232-1492)(Paris:de Boccard,1973),358.
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MAYA SHATZMILLER
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respondedthat the man's childrenwere entitled to make an agreement with his sister regardingthe gift; such an agreementwould
make her liable to them for the property,because it had belonged to
theirfather.02
A brother'slegal capacitywith respect to his sister was of considerable importance, as indicated by the notarial documents. A brother
may become his sister's guardian,give her away in marriage,and take
possession of her dower. In each instance,he has the same power as a
father.103He may fix the amountof the dower and the timing of the
delayed portion, and he may delay its transferto her. A brotheralso
exercises legal power over his sister in connectionwith her inheritance
from their mother or father. He may take possession of his sister's
share on her behalf at the moment of the distributionand may delay
transferof the propertyto her.
An iqrdr from fourteenth-centuryJerusalemillustrates the double
aspect of a brother'scontrolover his sister's dower and inheritance.In
1379 Fitima, the wife of the late Miisa, acknowlegedhaving received
from her brother,Muhammad,the executorof her husband'sestate,her
dower and her clothing, to which she was entitled. She also acknowledged that she continued to receive from her brotherher share in a
house left by theirfather,the value of which was known to her.'04
Similarly,the fifteenth-centuryGranadandocumentscontainseveral
examples of gifts, sales, and depositsof propertybetween brothersand
sisters.A complicatedtransactioninvolving severalinheritedproperties
points to underlying motives similar to those in fatwd (19). In June
1464 Fatima bt. 'Aliya purchased a field (faddan) owned by her
brother,Ibrahim,for fourteen gold dinars.'05In a separatedocument,
dated November 1464, the same Fatima testified in the presence of
witnesses that she had in her possession thirty-two Granadangold
dinarsof high qualityfrom the new mint and two gold dinarsfrom the
previousmintwhich were the propertyof her brother,Ibrahim,andthat
she was now returningthe money to him. She also testified that she
was giving her brotherhalf of the fadddn that she previously had
purchasedfrom him, while remaininga partnerwith him in the second
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houses, irrigationrights, and, especially, land- intact, and, more importantly, undivided. It would appear that the majority of women
owned at least some propertyat some pointin theirlife.
3) The implementationof women's propertyrightswas effected by
mechanisms embeddedin the Islamic legal system and by the latter's
recognized personnel: notaries, witnesses, judges, muftis, and male
jurists who attemptedto link actual socio-economic conditions with
legal rights.
4) Local customs and the social and economic needs of individuals,
families and communitieseither supportedor opposed the implementation of women's propertyrights. We have seen examplesof attempts
by family members to encroach on women's control of property.
Althoughwomen were somewhatdisadvantagedby the Islamic inheritance rules, a more serious threat to their interestswas posed by the
non-registration of their property acquisitions with notaries. The
evidence presentedhere points to the critical importanceof involving
notariesand witnesses in the registrationof propertyrights.Both legal
provisions and social patternswere used to hinder women's control
over property.The most serious hindrancewas the requirementthat a
woman have a male guardianwho controlledher propertyboth during
her minority and subsequentto her marriage.Anotherhindrancewas
the tendency of fathers to favor sons-in-law over daughters and of
mothersto challenge their sons-in-law. Otherhindranceswere created
by local customs and social conventions, although these might be
"corrected"by the muftis.The power of the jurists seems to have been
particularlysignificant in two circumstances:(a) when a challenge to
ownership occurredduring a child's minority;and (b) when women
were disadvantagedby theirignoranceregardingthe properand timely
handlingof documents.On the whole, the courtsappearto have served
as an arena in which women vigorously pursued their rights and
interests.
Familial politics clearly were an importantobstacle to a woman's
exercising effective control over her property. From the fatwds it
appearsthat families were obsessed with the controlof property,large
or small. Relatives such as a father, mother, daughter,or son were
actively involved in propertydecisions;husbandsandwives frequently
appearas outsiders,as "foreignbodies" attachedto a family who pose
a threatto familial interests.In the many power strugglesthat played
themselves out in our sources, agnatic ties generally took precedence
over affinal links. On the otherhand, amongthe reasonswhy women's
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