Recent scholarship such as Yossef Rapoport's Marriage, Money and Divorce in Medieval Islamic Society (2005), Maya Shatzmiller's Her Day in Court (2007), and the edited volume The Islamic Marriage Contract (2008) have made enormous contributions to our understanding of the pre-modern Islamic law of marriage and divorce and the ways in which it was applied and manipulated by qadis, notaries, and ordinary individuals. Among other things, these studies have revealed the enormous variability and negotiability of the rules by which marriages were contracted and dissolved. They have also suggested the ways in which different interpretations of the rules affected the bargaining positions and comparative power of men and women negotiating their roles within the marital relationship. Meanwhile, Kecia Ali's Marriage and Slavery in Early Islam (2010) has provided a trenchant analysis of the historical background and ideological assumptions of the early Islamic law of marriage and divorce, emphasizing the gendered and asymmetrical nature of marital rights and duties and the centrality of the concept of male dominion. While indispensible to all future scholarship, Ali's work does not extend beyond the early period and thus does not cover many developments in classical and post-classical law. This paper examines how later Islamic jurists, primarily of the twelfth and thirteenth centuries C.E., overtly theorized about the underlying logic and gendered implications of the marital relationship, showing that they engaged in significant – and widely divergent – reflections on the roles of husbands and wives. To what degree were roles within marriage subject to change based on the social context or status of the husband and wife? To what degree did the rights and duties of husbands and wife reflect timeless and non-negotiable gender roles? Did the gendered entitlements and obligations of husbands and wives primarily reflect balance and reciprocity, or hierarchy and domination? Focusing primarily on the issues of domestic labor and of marital sex, the paper shows that fundamental aspects of the marital relationship were subject to serious debate in this period, a conversation pursued particularly vigorously (but not exclusively) by Ibn Taymiyya and his school. Using both legal texts and biographical dictionaries, this paper suggests not only that views of the normative roles of wives changed during this period, but that a corresponding shift is reflected in the depiction of individual women as "good wives."

Shi‘i jurists of the classical and post-classical period agreed that in order to complete a marriage contract certain components must be met to ensure its validity. While jurists of the three sects, Zaydis, Isma‘ilis and Twelvers disagree on the essentiality of certain components, they all maintain that a contract must be drawn to validate the marriage. This paper seeks to address the disagreement (ikhtilaf) among these three sects in dealing with certain components of the marriage contract. The paper will focus on the language (sigha) of the contract, the dower (sadaq/mahr) and the presence of a marriage guardian (wali). Furthermore, the paper will show the internal disagreement and any inconsistency among jurists within each sect, particularly among Twelver Shi‘i jurists. Finally, the paper will evaluate the role of the woman in contracting her marriage and how much agency each sect granted her. Unlike Sunni schools, studies on marriage contract among the Zaydi, Isma‘ili and Twelver Shi‘i sects have been largely overlooked. This paper breaks away from this tradition and focuses instead on inter-debates on marriage among the three Shi‘i sects. In this paper, I contend that while Sunni and Shi‘i jurists agree on certain marriage components for the marriage of the adult virgin woman (bikr), the three Shi‘i sects: Zaydis, Isma‘ilis and Twelvers disagree on the essentiality of some of the marriage principles, mainly, the age of majority (bulugh), the need for a male wali, the language of the contract and the dower. This paper seeks to explore these issues among the three Shi‘i sects and its impact on the marriage of the adult virgin woman.

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.

The absence of a specific divorce formula in the Qur’an and hadith led Muslim jurists to debate the legal effects of a dizzying array of Arabic expressions. These expressions remain essentially unstudied by modern scholars of Islamic Studies. Classical jurists identified one class of these divorce expressions as “those which are bound with the stipulation of the [wife’s] wish for a divorce (al-ta‘liq bi’l-mashi’a).” In other words, what they inquired into the legal effect of the husband’s statement to his wife, “You are divorced if you wish.” This legal statement differs from the instruments of “granting the wife the option to dissolve the marriage” (khiyar) and “granting the wife ownership of her affair” (tamlik) because the husband explicitly grants his wife the authority to repudiate (tallaqa) him with a revocable divorce when he says “You are divorced if you wish,” unlike in the cases of khiyar and tamlik. In other words, classical jurists allowed the husband to bestow upon his wife the full power of repudiation, which they carefully restricted to men in virtually all other circumstances. The goals of this paper are threefold. First, it traces the debates over the efficacy of the stipulations of the wife’s wishes in divorce pronouncements across the classical schools of the Hanafis, Shafi‘is, Malikis, Hanbalis, Zaydis, and Imami Shi‘a, as well as the earliest debates preserved in the Musannafs of ‘Abd al-Razzaq and Ibn Abi Shayba. Second, it highlights the substantial changes in the authority bestowed upon the wife that occur depending upon which Arabic particles and nouns which act like particles, such as idha, mata, and kullama, the husband employs in his divorce pronouncement. For example, many classical jurists restricted the wife’s authority to divorce her husband to the immediate session in which he stipulated her approval when he says “You are divorced if (in) you wish,” but they granted her the authority to divorce him indefinitely if he said “You are divorced when (mata) you wish.” Jurists also debated whether a woman could divorce her husband multiple times if he said “You are divorced every time (kullama) you wish.” The final goal of this paper is to assess the implications of the capacity for language to enhance female legal authority in domains traditionally restricted to men on the basis of scriptural sources.