Marriage and Slavery in Early Islam by Kecia Ali Read Free Book Online

bodily rights, individual freedoms, kinship structures, and systems of patronage. It is easier to point out what is obviously objectionable, such as some people’s ownership of others or the apparent commodification of women’s bodies, than to recognize the merely unfamiliar, such as the role of the family in marriage arrangements. Readers understand- ably focus on what is strange—noting unanimous juristic agreement on the right of the father to marry off his minor and/or virgin daughter without her permission—and bypass what was a highly significant re- form in its own context: the insistence that a woman who had once been married could not be married off again without her spoken consent. Seeing through a modern lens, we risk overlooking the key issues that animated these legal discussions.
    I have already noted two of the interrelated challenges that formative-period legal texts pose to modern readers. First, they are pre- scriptive rather than descriptive, with a complex relationship to the social contexts they reflect and address. Second, they assume certain things about men, women, and kinship that are no longer givens. A third challenging factor is their genre. These texts are addressed to an audi- ence trained in a specific way of asking questions and interpreting
    answers. They use specialized terminology and rely on a wealth of assumed knowledge. Not only do they presume familiarity with reli- gious source texts of the Qur ' an and hadith and specific legal doc- trines and ideas, but they expect their audience to be conversant with broader ongoing legal discussions. Much remains unstated because it is obvious.
    I will argue, moreover, that the rhythms or modes of argument char- acteristic of legal texts shaped the jurists’ views. Conventions of legal argumentation led jurists to different conclusions from those of others equally steeped in the same scriptural and cultural milieu. 67 Legal thinkers were neither cut off from larger social patterns nor necessarily restricted to jurisprudential works in their intellectual output. 68 In works of poetry or scriptural exegesis, the same men might approach questions of marriage and gender quite differently. Jurisprudence is not merely an epiphenomenon of patriarchy. The law has a life and logic of its own. At some level, ideas are determinative of other ideas, or at least limited by the intellectual justifications that can be produced. The need to construct de- fensible arguments leads to a hardening of certain positions, including those denying the enforceability of certain wifely rights, such as those to sex.
    We see this manifest directly in discussions of marriage and slavery. The critical conceptual links between marriage and slavery emerge from a core idea about sexuality and sexual licitness: licit sex was possible only when a man wielded exclusive control over a particular woman’s sexual capacity. This view, implicitly shared at the outset of the forma- tive period, was fuzzy with regard to female slaves and stronger with regard to free women. By the end of the formative period, among the legal thinkers discussed here, it was accepted that the same strictures would apply to slave sexuality. The jurists’ comfort with the semantic overlap between marriage and slavery facilitated this process. Gail Labo- vitz, in a study of marriage in rabbinic thought, has proffered a model for understanding the relationship between wives, slaves, and other possessions. 69 Using the work of George Lakoff and Mark Johnson (Meta- phors We Live By) as well as of Paul Ricoeur, she suggests that metaphor is a means of understanding, and indeed making, reality. In the case of the rabbinic treatment of marriage, the central metaphor is “women are ownable.” But metaphor requires ambiguity: marriage “is” and “is not” ownership; both affirmation and negation are necessary to its function.
    In the Muslim context, metaphor serves as a necessary backdrop for the central