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islamic jurisprudence lecture 7

Tags: islamic jurisprudence

Kecia Ali - Marriage and Slavery in Early Islam

  • coherent understanding of marriage
    • building on Layla Ahmed - “women and gender in Islam”
    • looking at devise of analogy, and reasoning through analogy
      • specifically the quran
    • using slaves was an important analytic for the scholar and jurst, and cannot understand marriage without understanding legal theorization of slavery and commercial practices
    • when does the analogy not match up with women and slavery?
      • women are not comparable because they do not sell their bodies to men
    • “marriage in the premodern period cannot be completely understood without an understanding of slavery” - is this true?
      • same discursive frame used for slavery and marriage
      • justification from slavery, using slavery as an analogy
      • line between legal rationality (jurisprudence of slavery and marriage) -> this rationality is constructed to discursive frame <- social realities
        • the gap between practice and discourse?
      • ibn al-hajj - quotes him and makes the point that the jurists like him were not people who were sociologically representive
      • why marriage and divorce? what does this tell us about early muslims?
    • islamic laws are diverse, and because they are diverse, they are suspectible to reform
    • aziza habri - lawyer, founder of qurama - US associations for muslim women lawyers
      • pratices of medina is a normative framing
        • textualizing social practices
    • social construct and the interplay between jurist rulings and society
      • she looks at the hardening of juristic thought
    • marriage and islamic law involve selling sexual access
      • focusing on the fluidity of categories, the logic of marriage
      • differences between the madhabs
    • enslavement and masculinity?
      • enslavement either feminized or infantilized the male with regard to consent
  • ali lays out how contingent the assumptions of slavery and hierarhcies required in the relationship
  • go understand why Keisha Ali cares, the doctrine is still alive!
    • many muslims still believe this doctrines to be authorative
    • progressive muslims will need to build this differently
  • what about her assertion that “law has a life and logic of its own”
    • intellectual justifications need to construct defensible arguments
    • this leads to a hardening of intellectual standards
    • how does this reconcile with what jurists actually believe?
      • what precendents constrain you? how constrainted are you to the actual texts itself?
    • what is the point of a law that can’t be enforced or is a law that they don’t actually believe in?
    • nascent madhabs, but lots of the positions are already established
  • al-surkhasi
    • why do we do all this stuff for wives? do you purchase the right to the sexual access?
    • why does a husband owe his wife?
      • why does a judge, people who do labor, etc
    • argues that you are entitled to the opportunity cost of doing another thing
    • effectively paying a retainer
    • being a wife as a job?
  • arguing that transaction in marriage was commericial in essence, but qualified that it does not involve selling sexual access to her body

Rapoport - Marriage, Money, and Divorce

  • questions of practice in stipulations
    • requirement of a bridal gift
    • dowery and dower - both go to the wife
      • indebtedness of husband
    • shafi’i’s believe that monetary transfer to wife maintanence as a economic value, i.e. unground grains, because unground grains could be sold
  • marriage consent -> not neccessarily between bridge and groom
    • is the consent between the different parents
    • is marriage a contract between families
  • is patriarchial authority given life through divorce?
    • functions as an escape value for categories of wives
  • 3 types of divorce
    • talaq - unilatery repudication
    • huluq - forgo the mahr, pay back the dowery in exchange for divorce
    • divorce through courts
  • discursive frame of patriarchical authority, model of business exchange pretend itself to a sense of agency
  • was debt used as a fictious way to use to pass on money?