Jurists of the classical Sunni schools of law as well as their pre-classical predecessors gave considerable attention to the problem of coercive fornication (al-istikrah `ala al-zina), or what we would call “rape.” Over the course of the first several Islamic centuries, several points of convergence emerged on the treatment of both violators and victims. For example, regarding the corporal (hadd) punishment for fornication (zina), early and classical authorities agreed on the necessity of imposing the hadd punishment on Muslim perpetrators, on the aversion of the ?add punishment from female victims and minors due to an absence of valid consent, and on the distinction between non-Muslim (dhimmi) and Muslim violators. Juristic discourse was also fairly univocal in regarding the violation of slavewomen as type of property crime, in obliging violators to compensate owners for any depreciation in value caused by the sexual misuse, and in holding slaveowners liable for violations committed by their male slaves. The schools were intractably divided, however, over whether or not to provide a monetary award to free women who had been raped. While most authorities of the formative period and the classical Sunni schools mandated a monetary compensation to the free rape victim in the amount of her dower (sadaq or mahr), a minority argued against the validity of any such compensation. Each position was built upon a complex of ideas about the relationship between sex and money in the institutions of marriage and concubinage, and about the relationship between divine rights (huquq Allah) and personal rights (huquq al-`ibad) in contexts where both had been violated. Articulated in the early legal reports (athar) as simple statements for and against the award, the two opposing doctrines are elaborated in Sunni legal discourse with increasing nuance. This paper will trace the emergence of this debate in the legal reports and its progression through classical Maliki and Hanafi school texts, which demonstrate its subtleties with particular clarity.
Religious Studies/Theology
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