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The Bargaining of Women's Inheritance Rights through Amicable Settlement in Islamic/Ottoman Law
Abstract
Studies of Middle Eastern women have been dominated by debates over Orientalist assumptions about the passivity and exploitation of women. A distinction has often been made between Islamic legal doctrine, which guaranteed various rights to women, and actual legal and social practice, which involved the circumvention of the doctrine and the violation of women's rights. This paper attempts to take the issue beyond this dichotomous debate by examining legal practice in the area of inheritance during the Ottoman period and illustrating the ways in which it worked flexibly within the parameters of the doctrine. In Islamic law, women enjoyed the right to inherit, albeit lesser shares than their male counterparts. A strict application of the law led, inter alia, to the transfer of property out of the family, which was undesirable in an agrarian society. The legal mechanism of sulh (amicable settlement) provided a legitimate tool for the men to exclude women from enjoying their legal inheritance rights. Islamic law recognized this mechanism of communal dispute resolution, and laid down stipulations to ensure the legality of the process and outcome of sulh settlements. Takharuj, the amicable settlement by which an heir is excluded from inheriting a share of an estate in return for a consideration, appears to have been applied in practice more frequently to women, especially in cases of involving real estate. Focusing on Ottoman legal practice in Istanbul in the eighteenth century, the paper analyzes fatwa compilations of Ottoman shaykh ul-islams, comparing the rulings with the principles of inheritance and takharuj in the Hanafi fiqh literature. Its aim is to contribute to the understanding of the intricate relationship between legal doctrine and legal practice, and more specifically the legal dynamics that shaped the rights and status of women.
Discipline
History
Geographic Area
Ottoman Empire
Sub Area
13th-18th Centuries