Women and Property Rights in Al Andalus PDF

Women and Property Rights in Al-Andalus and the Maghrib: Social Patterns and Legal
Discourse
Author(s): Maya Shatzmiller
Source: Islamic Law and Society, Vol. 2, No. 3, Marriage, Divorce and Succession in the Muslim
Family (1995), pp. 219-257
Published by: BRILL
Stable URL: http://www.jstor.org/stable/3399469 .
Accessed: 02/03/2014 19:22
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
BRILL is collaborating with JSTOR to digitize, preserve and extend access to Islamic Law and Society.
http://www.jstor.org
This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

All use subject to JSTOR Terms and Conditions
WOMEN AND PROPERTY RIGHTS IN AL-ANDALUS
AND THE MAGHRIB:
SOCIAL PAT'ERNS AND LEGAL DISCOURSE*
MAYA SHATZMILLER
(Universityof WesternOntario)
Abstract
This essay focuses on the implementationof women's propertyrights in al-Andalus
and the Maghribin the period between the tenth and fifteenth centuries, as reflected
in legal sources. An examination of Islamic property and family law, judicial
practice, and the attitude of jurists toward women indicates that the majority of
Muslim women owned property independently at some point in their lives, that
women acquiredpropertyat every stage of the life-cycle, and that women played an
important role in the intergenerational transmission of property and in keeping
familial property intact. At the same time, the legal institutions of guardianship
(wilaya) and interdiction (hajr) placed constrains on the ability of women to
exercise effective control of their propertyduringadulthood.The implementationof
women's shar'l propertyrights by qadis and muftis had importantconsequences for
women's relationships with their families, especially their husbands. That male
domination was never complete in propertied families calls into question the
characterizationof the Muslim family as "patriarchal"and points to the need for a
new social, cultural, and economic explanationof the natureof the Muslim family.
Investigative Framework
THE RIGHTto own property is a fundamental aspect of any economy.

In medieval Europe, the right to own property emerged as an instru-
mental tool in the agricultural and commercial revolutions and as the
key to business initiatives and capital formation.' The right to own land
in an agrarian-based economy and to retain the proceeds of commercial
real estate transactions and capital generated by commerce and urban
labor created an important incentive for economic activity. Property
*
This essay is part of a comprehensive study of the propertyrights of Muslim
women, currently in progress. I wish to thank the participants in the workshop,
"Gender,Family, and the Courts in Muslim Societies," Cornell University, October
15-16, 1993, for their insightful comments, particularlymy colleague, Professor D.
Powers; I also wish to thank the Executive Editors of Islamic Law and Society for
comments on the final draft.
1 D. C. North & R. P. Thomas, The Rise of the Western World. A New
Economic History (Cambridge:Cambridge University Press, 1973), 19ff. explains
the crucial role played by property rights in stimulating economic activity in the
Western capitalist system. The question of how propertyrights in Islamic law and
society fit into this theoreticalmodel deserves attention.
? E.J. Brill, Leiden, 1995 Islamic Law and Society 2,3

220 MAYA SHATZMILLER
rights, however, are a key indicatornot only of economic change, but

also of women's status in the family and society.2 Little attention,
however, has been paid to Muslim societies in comparative historical
studies of women's property rights. Yet as is well-known, Muslim
women had the right to own and dispose of property.3 In the present
essay, I examine the extent to which this right was applied in practice,
as manifested infatwds. The use offatwas facilitates an examination of
both legal and socio-economic structures. This link is crucial because
the empirical evidence bearing upon the status of women is more likely
to be found in private legal documents relating to economic activity
than in public historical records. Laws and ordinances, charters, nota-
rial deeds, registers, and court decisions are valuable sources for the
history of women.4 This is certainly true for Islamic history, and recent
studies have used legal documents to elicit data relating to women's
lives.5 Whereas my primary goal here is to assess the legal position of
Muslim women with regard to property, I also hope to shed light on the
connection between women's property rights and their social status
within the family.6
2 On the
historiographicalproblemsconnectedwith women's history, see
ConnectingSpheres:Womenin the WesternWorld1500 to the Present,ed. M. J.
Boxer& J. H. Quataert(New York:OxfordUniversityPress,1987),3-17.
3 See for instance Jack Goody, "Inheritance,properyand women: some
in J. Good(ed.),Familyand inheritance(Cambridge,
comparativeconsideration,"
Cambridge Press,1976),10-37.
University
4 On the use of notarial and other legal documents, see Sources of Social
History. Private Acts of the Late Middle Ages. Papers in Medieval Studies V
(Toronto: Pontifical Institute of Medieval Studies, 1984). On women's labor, see
David Herlihy, Opera Muliebria: Womenand Workin Medieval Europe (New York:
McGraw Hill, 1990); Elizabeth Ewan, "Scottish Portias: Women in the Courts in
Medieval Scottish Towns," Journal of the Canadian Historical Association, N.S. 3
(1992), 27-45.
5 See Ronald C.
Jennings, "Women in Early 17th-CenturyOttoman Judicial
Records-The Sharia Court of Anatolian Kayseri," Journal of the Economic and
Social History of the Orient, 18 (1975), 53-114; Judith Tucker, Women in
Nineteenth-Century Egypt (Cambridge:Cambridge University Press, 1985); Haim
Gerber, "Social and Economic Position of Women in an Ottoman City, Bursa,
1600-1700." International Journal of Middle Eastern Studies, 12 (1980), 231-44;
Bruce Masters, The Origins of WesternEconomic Dominance in the Middle East:
Mercantilismand the Islamic Economyin Aleppo, 1600-1750 (New York: New York
University Press, 1988); Abraham Marcus, The Middle East on the Eve of
Modernity: Aleppo in the Eighteenth Century (New York: Columbia University
Press, 1989).
6 I was
promptedto examine this question by my finding that Muslim women
in the medieval period were active in a variety of trades and occupations and were
represented in strength in the workforce. See Maya Shatzmiller, "Aspects of
women's participationin the Economic Life of Later Medieval Islam: Occupations
and Mentalities,"Arabica, 35 (1988), 36-58. The findings of this researchappearin
my study, Labour in the Medieval Islamic World(Leiden: E. J. Brill, 1994), 347ff.

WOMENAND PROPERTYRIGHTS 221
The study of Muslim women's propertyrights is idiosyncratic,for

two reasons. First,whereas the Qur'anmentionsthat men are superior
to women in certainrespects(Q. 11:228),both the Qur'in and the hadith
fully acknowledgethatMuslimwomen are entitledto own and exercise
controlover propertywithoutinterferencefrommales.7No prescription
in these two fundamentalsources imposes restrictionson women with
regard to property; within marriage, the law envisages women as
retaining their independence with regard to property. This paradox
deserves attention.Did Muslim jurists perceive any inconsistency in
this matter?If so, did theirperceptioninfluencethe judgmentsof qadis
in cases dealingwith women's propertyrights?8
The second idiosyncrasyrelatesto the positionof Muslimwomen as
comparedto that of women in other societies, ancientand modern.9In
ancientAthens, a woman owned her dower and any otherpropertythat
she had inherited,but othermales (e.g., her father,brother,uncle, hus-
band, son, or son-in-law)were authorizedto administerher propertyon
her behalf and to representher in legal procceedings, ostensibley to
safeguard her interests.10In Roman law, a woman could inherit,but
7 Westernscholarsregardwomen's propertyrights as an anomoly that is
contraryto the spiritof the law. See, for example,JosephSchacht,An Introduction
to IslamicLaw (Oxford:The ClarendonPress, 1964), 126:"Thelegal positionof
womenis not unfavorable. The womanis, it is true,consideredinferiorto the man
... But as regardsthe law of propertyandobligations,the womanis the equalof
the man;the matrimonial regimeis even morefavorableto herin manyrespects."
On women's status,see RogerArnaldez,"Statusjuridiqueet sociologiquede la
femmeen Islam,"Cahierde CivilisationMedievale,20 (1977), 131-43;El2, s.v.,
mar'a(N. Tomiche).Thereis a needfor a comprehensive studyof theprovisionsof
the Qur'anand the hadlth and the differentschools of law regardingwomen's
propertyrights.Cf. IsabelFierro,"Lamujery el trabajoen el Cordny el hadiz,"La
mujer en al-Andalus, reflejos hist6ricos de su actividad y catgorias sociales, ed. M.
J. Viguera(Seville:EditorialesAndaluzasUnidas,1989),35-51.
8 Jules Roussier, Professorof Islamic Law at the law faculty of Algiers
University,who wroteon Malikilegal practice,explainedthis paradoxas follows:
The Qur'anencouragesthe Muslimwomanto marry.So long as she is married,she
does not needpropertybecauseherhusbandis supposedto providefor her.Yet the
Qur'anaccordedinheritancerightsto womenbecauseit was necessaryto address
the propertyneedsof unmarried women,whetherdivorcedor widowed.In orderto
encouragewomento re-marry, theirinheritancerightswerelimited.J. Roussier,"La
femmedansla societ6islamique,droitmalikitemaghribin," Receuilsde la societe
Jean Bodin, 11 (1959), 225. The culturalandideologicalsignificanceof this issue
deservesa full investigation.I intendto deal with it in a comparativemannerin a
studyof womenandpropertyin MuslimandRenaissancesocieties.
9 See, for example, David M. Schaps, Economic Rights of Womenin Ancient
Greece(Edinburgh: UniversityPress,1979).
Edinburgh
10 Raphael Sealey, Women and Law in Classical Greece (Chapel Hill:
Universityof NorthCarolinaPress,1990),48. The inferiorlegal statusof Athenian
womenwasjustifiedon philosophicalgrounds.Accordingto Aristotle,womenwere
werenotpersonsin theeyes of thelaw.
like children.and.therefore.

only from her agnatic relatives. A woman remainedunder the guar-

dianship of her fathers or male relatives after marriage;alternatively
she might choose to be transferredto her husband's guardianship.A
woman could not performany transactionwithoutthe involvementof a
tutor.I Her freedomconsistedin her abilityto approachthe senatorsto
appointa tutoror to requesta differenttutor.12Althoughin laterRoman
times, the role of guardianbecame a formality, his consent was still
needed to validate a contract.In the Germaniclaw of the early Middle
Ages, women could not take legal action, appearindependentlybefore
a court, or manage their own wealth; and they were at a disadvantage
with regardto men in the law of succession.13And in fourteenth-cen-
tury Florence, the ability of women to engage in propertytransactions
was constrainedby male legal guardianshipand by the requirementof
parentalconsent.14
There are, of course,exceptionsto this pattern.One is the positionof
Jewish women in the first centuryA.D. Papyridiscoveredin the Judean
desert indicate that Jewish women had propertyrights greater than
those of their Greek counterparts.5sA woman named Babatha, for
example, owned four prosperousdate orchardsand lent her husbanda
sum of money to provide a dower for his daughter by his first
marriage.16Also exceptional are the Jewish women of eleventh- and
twelfth-centuryCairo.17
The connection between Muslim women's propertyrights and the
institutionsof marriageand the family is a key element of a compre-
hensive social historythathas yet to be written.The study of women's
propertyrights requires an examinationof family law (marriage,di-
vorce, inheritance,and guardianship),propertylaw (gifts, endowments,
I Ibid., 105.
12 Ibid.
13 Edith Ennen, The Medieval Woman, tr. Edmund
Jephcott (Oxford: Basil
Blackwell, 1989), 27ff.
14 Thomas Kuehn, Law,
Family, & Women,Towards a Legal Anthropology of
Renaissance Italy, (Chicago, Chicago University Press, 1991), pp. 197-238.
15 Judean Desert Studies 11, the documents
from the Bar Kokhbaperiod in the
cave of letters, ed. N. Lewis, Y. Yadin and J. Greenfield (Jerusalem: Israel
ExplorationSociety,1989).I thankProf.TimothyBanes for drawingmy attention
to this collection.
16 Ibid.,24 (documents16-18,25). Babathapossessedassetsin excess of 400
denarii. She lent her husband300 denarii towardthe 500 denarii dowryof his
daughterby his first marriage.After her husband'sdeath,when his estate was
insufficientto pay either the loan or her own dowry,Babathatook possession
(probablyde jure since a widow was entitledto the returnof her dowry)of her
husband'sdateorchards.
17 S. D. Goitein, A MediterraneanSociety. Vol. III The Family (Berkeley and
Los Angeles:Universityof CaliforniaPress,1978).

WOMEN AND PROPERTYRIGHTS 223
sale and hire),judicial practices,and attitudesto women. Such a study

may shed importantlight on the relationshipbetween Islam and socio-
economic developmentin early modem and modem times, especially
with respect to the status of women.18 These issues, which are of
considerableinterestto modem historians,form a central item on the
national agenda of Muslim societies,19and, for this reason, care must
be taken that contemporaryobservationsregardingthe status of Mus-
lim women in modem times do not affect the historian'sassessmentof
the statusof women in pre-modemtimes.2
The historical investigation of the status of Muslim women in the
period between the tenth and the fifteenth centuriesis still in its early
stages (the Ottomanperiod is better known, but one must avoid the
tendencyto projectconclusionsbackwards).21 At this point in time, one
of the most importanttasks is to identify and locate adequatesources.
Of course,thereare numeroushistoricalchroniclesand literarysources,
but these may be unrepresentativeand misleadingandthereforeshould
be used in conjunctionwith other sources.22Among the materialcur-
rently available,legal sources deserve greaterattentionthanthey have
received.Recent studiesbased on legal sourceshave demonstratedtheir
potential for the history of Islamic marriageand family. Lutfi's study
of court documents and Powers's study of fatwas indicate that
18 Due to the paucityof researchon this issue, the ideological debate on

whetherthe male monopolyof meansof productionresultedin the suppressionof
womencannotbe entertainedat thisstage.See the discussionin Tucker,Womenin
Nineteenth-CenturyEgypt, 6-7.
19 ElizabethH. White,"LegalReformas an Indicatorof Women'sStatusin
Muslim Nations"' in Womenin the MuslimWorld,ed. L. Beck & N. Keddie
Mass.:HarvardUniversityPress,1978),52-58.
(Cambridge,
20 In a brief discussion of the Muslim family, E. L6vi-Provengal wrote, "The
head of the family, whatever his social class, was the absolute master at home. His
wife considered herself his humble servant, always speaking to him with great
reverence, especially in front of the children ... The household members breath
easily, once the master has left home, early in the morning to attend to his daily
needs" (Histoire de l'Espagne musulmane,3 vols. [Paris: Maisonneuve, 1950-53],
399-400). See also Robert Brunschvig, La Berberie orientale sous les hafsides des
origines d lafin du XVe siecle, 2 vols. (Paris: Maisonneuve, 1947), vol. 2, 170.
21 See Tucker, Women in Nineteenth-Century
Egypt, 43-52, and the studies
cited in note 4. The study of landholdingpatternsin the Islamic West in the period
between the tenth and fifteenth centuries will benefit greatly from the examination
of fatwas. See Maya Shatzmiller, "Unity and Variety of Land Tenure and
Cultivation Patterns in the Medieval Maghreb," The Maghreb Review, 8 (1982),
24-28; idem, "L'organisationdu travail dans 1'Islam m6di6val d'apres les fatwds:
le cas du Mi'ydr," Itineraires d'Orient. Melanges Claude Cahen, Res Orientales 6
(1994), 367-80.
22 On sources for the history of women's labor and on women's labor itself, see
Shatzmiller, "Aspects of women's participation";idem, Labour in the Medieval
Islamic World, 69-98, 347-69.

information relating to demography, family structure, marriage con-

tracts, inheritance, and patterns of childbearing and childrearing are
empirically accessible.23
The question of the reliability offatwds is raised frequently enough
by historians to warrant attention. Some scholars maintain that because
many fatwds lack the substantial historical details that would accord
them a cachet of real-life situations, one cannot be certain that they
describe actual cases or that the legal conclusions reported in them were
implemented.24 This view recently has been refuted persuasively by
Hallaq.25 Indeed, historians of the Maghrib and al-Andalus have for a
long time treated fatwas as an important historical source, in part
because Miliki muftis were directly involved in a legal system that
helped to regulate social and economic activities, private and public.26
Scholars such as Ari6, Idris, Brunschvig and Talbi have usedfatwas as
sources to reconstruct the social and economic history of al-Andalus
and the Maghrib.27
23 Huda Lutfi, A Study of Six FourteenthCenturyIqrdrs from al-Quds

Relatingto MuslimWomen,"Journalof the Economicand Social Historyof the
Orient, 26(1983), 246-94; idem,Al-Qudsal-Mamlukiyya: A Historyof Mamluk
JerusalemBased on the HaramDocuments.Islamkundliche Untersuchungen,no.
113, (Berlin:KlausSchwartzVerlag,1985);DavidS. Powers," Fatwdsas Sources
for LegalandSocialHistory,"Al-Qantara,11 (1990),295-341;idem,"TheMaliki
FamilyEndowment:Legal Normsand Social Practices,"InternationalJournalof
MiddleEast Studies,25 (1993), 379-406 (on womenandwaqf, see esp. 382-86,
395, 397). An annotatedbibliographyof aspectsof the historyof the Andalusian
womancanbe foundin La mujeren al-Andalus,17-34.
24 On Andalusian
fatwds and their historical value, see Jos6 L6pez-Ortiz,
"FatwasGranadinasde los siglos XIVy XV,"Al-Andalus,6 (1941),73-84.
25 Wael b. Hallaq,"From Fatwds to Furu': Growthand Changein Islamic
SubstantiveLaw," Islamic Law and Society, 1 (1994), 29-65.
26 See El, s.v.
"Malikiyya" (N. Cottart); Emile Tyan, Histoire de l'organi-
sation judiciaire en pays d'Islam (Leiden: E. J. Brill, 1960), 219-30, esp. p. 219,
"La r~gle suivant laquelle la futya ne peut s'exercer que des cas d'espoces soulev6s
par la pratique, et non sur des cas th6oriques,fait encore mieux ressortirle r61e et
l'influence du jus respondendi musulman"; Jos6 L6pez-Ortiz, "Recepci6n de la
escuela malequf,"Annuario de Historia del Derecho Espaiol (1930), 75ff., 84ff.;
Claude Cahen, "Consid6rationssur l'utilisation des ouvrages de Droit musulman
par l'historien," Atti del III Congresso di Studi Arabi e Islamici. Ravello, 1966
(Naples: Instituto UniversitarioOrientale, 1967), 230ff., 241-42.
27 Rachel Ari6,
L'Espagne Musulmane au temps des Nasrides, 1232-1492,
(Paris, Editions Boccardl973); H. R. Idris, La Berberie orientale sous les zirides,
Xe-Xlle siecles, 2 vols. (Paris: Maisonneuve, 1962); Brunschvig, "La Berberie
orientale";M. Talbi, "Law and Economy in Ifriqiya (Tunisia) in the Third Islamic
Century: Agriculture and the Role of Slaves in the Country's Economy," in The
Islamic Middle East: Studies in Economic and Social History, ed. A. L. Udovitch
(Princeton:Darwin Press, 1981), 209-49. See now also MariaJ. Viguera, "En torno
a las fuentes jurfdicas de al-Andalus," Publications of the Faculty of Humanities,
University Hasan II (Tetuan), vol. 4, 71-78; Maya Shatzmiller, "Wakf khayrr"in
Fourteenth-Century Fez: Legal, Social and Economic Aspects," Anaquel de

Fatwds, however, are not transparenttexts. The primarychallenge

of using them for the purpose of historical investigation lies in the
inability of historiansto situatetheir contentswithin the largerframe-
work of social, economic, and political history. These texts baffle us
because they lack the historicalqualifiersto which we are accustomed
(e.g., precise date of thefatwd and the location, size and identity of
propertymentioned therein) and because they take us several levels
below the known surfaceof Muslim society and thereforeare difficult
to situatein theirsocial and economic context.In place of the "routine"
historicalheroes (e.g., grandees,'ulama',rulersand militarycomman-
ders), these texts referto the privateand mundaneaffairsof "ordinary"
men and women who did little or nothingto distinguishthemselves in
the eyes of contemporaries.Althoughfatwds are historical texts, the
historicalinformationcontainedin them is largely microhistoricaland
is not easily integratedinto the largerhistoricalframeworkconstructed
on the basis of chronicles,literaryworks, andhisba manuals.Although
queries sent to the muftis and the latter's writtenresponses sometimes
involved known historicalpersonalities,more often thannot the muftis
respondedto questionsfrom membersof the community-at-largeand to
local qadis.
The presentstudy is based primarilyon the Mi'yar of al-Wansharisi
(d. 1508), a collection of Maliki fatwds issued in al-Andalus, the
Maghrib, and Ifriqiya between the tenth and fifteenth centuries.
Althoughthe exploitationof thesefatwas for historicalpurposesbegan
in the earlyyears of this century,28the sheermagnitudeof the collection
has frustratedscholarlyeffortsto providea generaland comprehensive
view of underlyinglegal, social and economic realities. This task has
Estudios Arabes, 2 (1991), 193-217.
28 See,
especially, Hady Roger Idris, "Le mariage en Occident musulman
d'apr6s un choix defatwds m6di6valesextraits du Mi'ytdrd'al-Wansharishi,"Studia
Islamica, 33 (1970), 157-67; idem, "Contributioni l'6tude de la vie 6conomique en
Occident musulman m6di6val: glanes de donn6es chiffr6es," Melanges Roger Le
Tourneau, Revue de l'Occident Musulman et de la Mdditerranee (1973), 75-87;
Vincent Lagardere,"La haute judicature i l'6poque almoravide e al-Andalus,"Al-
Qantara, 7 (1986), 135-228; idem, "Droit des eaux et des installations hydrau-
liques au Maghreb et en Andalus. au XIe et XIIe si6cles dans le Mi'ydr d'al-
Wansharisi," Cahiers de Tunisie, 37-38 (n.d.), 84-124; idem, "Cultureet industrie
du lin en Al-Andalus au moyen age (VIIIe-XVe s.)," Studia Islamica, 54 (1991),
143-65; idem, "Moulins d'Occident musulmanau moyen age (IXe au XVe siecles):
Al-Andalus," Al-Qantara, 12 (1991), 59-118; idem, "Agricultureet irrigationdans
le district (iqlim) de Velez-MAlaga. Droit des eaux et appareils hydrauliques,"
Cahiers de civilisation medi6vale Xe-XIIe siecle, 35 (1992), 213-15; David Powers,
"Fatwds as sources for Legal and Social History"; idem, "A Court Case from
Fourteenth-CenturyNorth Africa," Journal of the American Oriental Society, 110
(1990Q.229-54.

been furthercomplicated by the fact that until 1982, the Mi'yar was
The publicationof the text
available only in manuscriptor lithograph.29
in 1982 by the Moroccan Ministry of Culture and Religious Affairs
(twelve volumes plus a volume of indices) has made its contentsmore
accessible and easier to use.30
The fatwds studied here were selected from chaptersdealing with
marriage (nikdh), exchanges and sales (al-mu'dwaddt wa'l-buyi'),
endowments (ahbas), hire, rent and artisans(ijdra kird' wa'l-sunnd',
wa'l-akriyawa'l-sunnd'),and gifts, charitabledona-
nawclzilal-ijcartdt
tions, and manumission(al-hibct wa'l-sadaqdtwa'l-'itq).My selection
of thesefatwas has been guidedby threecriteria:first,eachfatwd refers
to a distinct mechanism throughwhich a woman becomes a property
owner;second, each deals with a differentaspectof familial dynamics;
third, each fatwt studied here was issued in either eleventh-century
Cordobaor Tunisia or fourteenth-centuryGranadaor Fez. In support
of the evidence foundin thefatwds,wheneverpossible,I cite additional
evidence from two contemporaryMaliki notarialformulariesand from
an archival cachet of propertydeeds registered by fifteenth-century
Granadannotaries. Approximatelyhalf of the fatwds in the above-
mentionedsections of the Mi'ydr and approximately95 percentof the
Granadandocumentsdeal with problemsrelatingto women. However,
this is not a quantitative study and any conclusions that I advance
shouldbe regardedas provisionaland tentative.
The mustaftis (a technical term for the person who requests an
opinion) andthe muftisgenerallybegin by notingthatthe case relatesto
a woman. Because the legal statusof women differs from that of men,
fatwas are an excellent source of informationabout the treatmentof
women.31 Thefatwds demonstrate how the jurists attempted to establish
the legal circumstancesin which a propertywas acquiredor handledby
a woman. They also shed light on when, how often, and to what extent
29 The use of Idris, "Le mariage,"is rendereddifficultby the fact that the
authorrefersto thefatwas accordingto a numberingsystemthathe was unableto
explainbeforehe died.
30 Ahmad b. Yahya al-Wansharisi,Al-Mi'yar al-mu'rib wa'l-jimi' al-mughrib
'an fatdaw 'ulamd' ifriqiya wa'l-Andalus wa'l-Maghrib, ed. M. Hajji, 13 vols.
(Beirut, 1981-82). A selection of fatwas from the Mi'ydr was translated by E.
Amar, Consultations juridiques des faqihs du Maghreb (Choix des fatwas du
Mi'ydr d'al-Wansharist), Archives Marocaines,12-13 (1908-09). On al-Wansharisi
and his collection, see, ibid., Introduction;M. Benchekroun, La vie intellectuelle
marocaine (Rabat: n.p., 1974), 395-401. Francisco Vidal-Castro, "Ahmad al-
Wansharisi (m. 914/1508). Principales aspectos de su vida," Al-Qantara, 12(1991):
315-353.
31 Schacht, Introduction, 126-27.

women's ownership of propertyreceived judicial validation and the

parametersof her freedom of action in controllingit. Two other para-
metersare importantin connectionwith the establishmentof ownership
and controlof property:the differentfamily affiliationsand the position
of each person within the family. By juxtaposing legal discourse and
family relationships,I attemptto identify the typical circumstancesin
which women's propertyrights were implemented and to provide a
model of familialeconomicbehavior.
MinorDaughtersand TheirFathers
After inheritance,hiba and sadaqa are the most importantmechanisms
for transferringpropertyfrom one memberof the family to another.
Also important for our purposes are two procedural phenomena
mentioned in the cases, hiyaza or qabd (taking possession) and hajr
(interdiction).
(1) Ibn al-Makwi (alternatively,al-Mikwi, d. Cordoba,401/1010),

was asked about a father who summonedwitnesses (ashhada) to
attest that (a) he had given all his domestic possessions, including
bothjewelry and clothes, as a gift (hiba) to his two minordaughters;
(b) that one chest (tdbut)containingclothes was to go in its entirety
to one daughter,that anotherchest was to go to anotherdaughter,
and that he kept for himself only the shirt on his back (kiswat
zahrihi);and (3) thathe was giving a silo (matmura)to one daugh-
ter and all the food in the house to the other.The witnesses did not
examine the property in detail and did not ascertain the exact
quantitiesof the differentitems,except to see thatthe silo was full of
food, that the house had food in it for the second daughter,and that
the daughterswere wearing jewellery priorto their father's death.
The mustaftlasked if the gift was lawful. In a brief response,Ibn al-
Makwi said thateverythingbelongedto the daughters.32
(2) Ibn al-Makwi also was asked about a fatherwho had acquired
(iktasaba) jewellery and cloths on behalf of his virgin daughter
(bikr) who was underhis guardianship;the items were placed in a
locked chest under the supervision of the girl's mother, his wife.
Afterhis death,the man's heirs claimed a shareof the jewellery and
the clothes. Ibn al-Makwi respondedthat if it was widely known
32 Mi'yar, vol. 9, 123.

228 MAYASHATZMILLER
that the dead man had acquired the property on behalf of his
daughter,the heirs had no claim to it.33
(3) Someone asked the Granadanmuftf, Abu Sa'id Farajb. Lubb

al-Shatibi(d. 1380), about a woman (mar'a), that is, about a minor
girl who was underthe guardianshipof her father(ft wilayat abtlh).
The girl received some propertyas a gift from her father and, with
his consent, designatedthe propertyas an endowment.Ibn Lubbre-
spondedthatthe creationof the endowmentwas invalid (yufsakhal-
tahbfs) because a father cannot alienate propertybelonging to his
minor daughterwithout offering a substitute('iwa.). According to
Miliki jurists, Ibn Lubb continued, if someone gives his child a
house or land as a charitable gift (sadaqa), the gift becomes the
property of the child.34 If, by consenting to the creation of the
endowment, the father was acting as if he were the founder, his
action is invalidbecausehe no longer owned the property;similarly,
if the girl "puther hand"(bdsharat)directlyon the property,acting
as if she were the founder,her action is invalid because she was a
minorunderinterdiction(ma.hjra).35
Like the otherlaw schools, the Malikis allow an individualto make

a gift to membersof his family in an attemptto circumventthe inheri-
tance rules. Like the Hanafis but unlike the other schools, the Malikis
requirethe physicialtakingof possession(hiycza)of the gifted property
in order for ownership to transfer.36Once a donor makes an offer to
give (rjab) and the donee accepts it (qabul), the right of acquisitionis
complete and the donee may take possession even withoutthe permis-
sion of the donor.The mode of takingpossession varies in accordance
with the nature of the gift. Once the means of taking possession has
been made available, as, for example, by handingover keys to a box,
the taking of possession is valid. The mere abandonment of the
33 Ibid. See also, Lucie Bolens, "Les parfumset la beaut6en Andalousie

m6dievale(XIe-XIIIesiecles),"Les soins de beaute.Actes du IIIeColloqueInter-
national,Grasse1985(Nice, 1985), 145-69.
34 Schacht, Introduction, 158: "the charitablegift (sadaqa) is treatedas a
donation,exceptthatit cannotbe revoked."Ibn'Arafaheldthatownershipremains
with the donor.see Powers,"TheMalikiFamilyWaqf,"382.
35 Mi'yr, vol. 7, 274.
36 On the Hanafis,see al-Sarakhsi,Kitdbal-Mabsut(Cairo, 1324H.; repr.
Beirut:Dar al-Ma'rifa,1398H.),vol. XII, p. 48: thumma'l-milk ld yathbutufi'l-
hibat bi'l-'aqd qabla'l-qabd 'indand. On the same page, al-Sarakhsi mentions a
pointof differencebetweenthe HanafisandMalikison this pointwhichseems to
go in a slightlydifferentdirection.

property by the donor is regarded as signalling a valid taking of

possession.37Although the death of the donor creates an obstacle for
takingpossession (as does bankruptcy,madness,a death-causingsick-
ness, or disposition of the gift), the Malikis recognize the presence of
witnesses (shuhad) at the declarationof the gift as equivalent to an
effective taking of possession. The purpose of this act is to alert the
generalpublicto a changein the statusof the property.
Interdiction(hajr)was a legal mechanismthatenableda responsible
adult to exercise control of property owned by three categories of
individuals whom the law considered unfit: minors, the mentally
incapacitated,and women, eitherafterpubertyandbefore marriage,or,
according to some Malikis, after marriage. The application of this
mechanism to women has been explained by two fourteenth-century
jurists, Khalil b. Ishaq and Ibn Juzayy.38An interdictedchild cannot
control his or her property.With males, the condition or status auto-
matically ceases at a certainage. With females, the conditiondoes not
necessarily end at a certainage or with marriage.To emerge from the
condition,males and females mustgo througha process of "liberation"
(tarshid) whereby four witnesses testify that he or she is capable of
handling his or her affairs. Since the process of tarshid must be
initiatedby the father,a daughteris dependenton his good will in order
to liberateherself fromhis guardianship.39 Khalilconcedes thata father
shouldremove the interdictionof his virgin and maturedaughterbefore
marriage,but recommendsdoing it after marriage.A father also may
renew the interdiction of his daughter.40Ibn Juzayy states that if a
woman has a father,she remainsunderhis interdictionupon attaining
physical maturity; even if she marries and goes to live with her
husband, she remains underher father's interdictionfor "a period of
time afterconsummationof the marriage"(wa-tabqdmuddatanba'da'l-
37 For details see Khalil b. Ishaq, Abrdge de loi musulmane selon le rite de
l'imam Mdlek, tr. G.-H. Bousquet, (Alger, Maisonneuve, 1961), vol. 3, 151; al-
Dardir (d. 1201/1786), al-Sharh al-Kablr, commentary on the Mukhtasar of Sidi
Khalil, with glosses by al-Dasiqi (Bulaq, 1295/1878), vol. 4, 103 [hereinafter
"Dardir-Dasuqi,Sharh"]; Ibn Juzayy, al-Qawdnin al-fiqhiyya, 277-79. For a short
version without the later development, see Ibn Zayd, Risala (Cairo, n.d.), 117-18.
For a comparative discussion, see Bellefonds, Traite de droit musulman compare
(Paris: La Haye, 1973), vol. 3, 311-411.
38 Khalil, Abrege, vol. 3, 61-62, Ibn Juzayy, Qawdnin 242-43.
39 A notarial model for tarshid can be found in Ahmad b. Mughith al-
Tulaytuli (m. 459/1067), al-Muqni' f 'ilm al-Surdt, ed. Francisco Javier Aguirre
Sidaba (Madrid: Consejo Superior de Investigaciones Cientificas, 1994), 302-03.
Thedocumentis drawnupfor a son;no documentfor a daughteris provided.
40 Khalil. Abrede. vol. 3. 61-62.

dukhdl).41 There is a disagreement over how long this period of inter-

diction continues after the marriage, ranging from one to seven years.
After marriage, a woman's freedom to dispose of her property
remains limited to one-third of her assets. If a married woman makes a
gift or manumits a slave, Ibn Juzayy explains, and the value of the gift
exceeds one-third of her property, one view holds that the excess is
void, while another view holds that the entire transaction is void. Ibn
Juzayy states that a married woman can spend all of her money in re-
turn for a consideration (bi-'iwad). If she makes her husband the bene-
ficiary of all of her property and allows him to derive profit from it, she
cannot dispose of it, with or without a consideration, unless he permits
her to do so.42 As we shall see, a husband can have his wife interdicted
and may request the complete annulment of her right to dispose.
The determination of if and when hiydza occurred played an
important role in the resolution of disputes over gifts. For this reason,
both the notarial models for gift transactions and the Granadan gift
deeds contain a clause in which the donee acknowledges having taken
possession of his gift. A Mgliki notarial formulary from eleventh-
century al-Andalus provides samples of hiydza documents and other
gift transactions in which it is specified that the transaction is not
completeuntilhiydzahas takenplace.43In certaincases, it is possible to
assign a mandate to a third pary to enable him or her to take posses-
sion on behalf of the minor. An example of how this worked in practice
is found in a notarized deed witnesssed in Granada in the year 1495 in
which two parents gifted a house to their minor daughter. The docu-
ment specifies the location of the house and then indicates that the
parents totally divested themselves of the property (wa-lam yabqi li-
anfusihimfilh baqiyat haqq wa-ld wajh manfa'atan), but that the father
took possession on behalf of his daughteruntil she comes of age (ild
tablugh al-bint al-mawhub lahd).44
The opinion of Ibn al-Makwi infatwas (1) and (2) was, therefore,
strictlyin accordancewith the prevailinglegal norm.The donationwas
valid because it fulfilled all the requirements.It had been performedin
the presence of witnessess for the sake of publicity: In fatwd (1) the
donor/fatherhad divestedhimself of everything,whereuponthe minors
took possession; and, in fatwd (2), the donor gave the keys to the
41 Ibn
Juzayy,Qawdnin,242.
42 Ibid., 243.
43 Ibn Mugith,al-Muqni',308.
44 LuisSeco de Lucena,Wathd'iq'arabiyyagharndtiyya.
DocumentosAribigo-
(Madrid,1961), 145.
Granadinos,

mother.Infatwd (3), the minor daughter'sentitlementto the gift was

threatenedby the fact that she was under interdictionand not in full
control of her property.According to the law, a minor, even though
underinterdiction,can take possessionin spiteof his/heryouth,without
being authorisedby his/her guardian,since this is an act that benefits
him/her.Althougha minoris restrictedin her capacityto dispose,being
"interdicted"(fi hajr), an exceptioncan be madeby the father,but only
for advantageous transactions(the creation of an endowment appa-
rently was not considered advantageous).The earlier gift prevailed
over the laterendowment.45
To sum up: Although a woman might receive propertyas a young
girl, she generally did not take possession of the propertyuntil many
years later, at which time complications, challenges, and litigations
might arise. Heirs might press claims or the donor/guardianmight
decide to revoke the gift because of changedcircumstances.Infatwas
(1) and (2), the heirs claimed that the gift was invalid because of
incertituderelatingto it and because the donordied before transferring
possession. Both Ibn Makwi and Ibn Lubb,300 years apart,upheldthe
ownershiprights of minordaughterswho had received gifts from their
fathers and protectedthem against membersof their family. In part,
these decisionswere based on the muftis'understandingof the intention
of the two donors. Of critical importancein this regardis the require-
ment of publically acknowledgingone's intentionto make a gift in the
presence of reliable witnesses. Once this has been accomplished,the
transaction is considered complete even if the physical transfer of
propertyhas not takenplace. Thejuristshad no difficultyupholdingthe
validity of such transactionsbecause they assumedthat the purposeof
the gift was to place propertyin the hands of children,a common and
accepted practice. Over time, the jurists' willingness to uphold such
transactionsmay have contributedto the strengtheningand perpetua-
tion of this particularstructureof propertydevolutionand to a greater
measureof economic stabilityandfamilialharmony.
Daughters versusFathers and Husbands

A man's understandingof custom might result in his finding that he
was acting contraryto the law when he attemptedto take controlof his
daughter'sproperty.
45 Schacht, Introduction, 126. On problems associated with endowments for

the benefit of minors. see Powers. "The Maliki Family Waqf," 396.

232 MAYASHATZMILLER
(4) A question submitted to Ibn Lubaba (d. Cordoba 314/926)

mentions a father who took possession (qabada) of his married
daughter's personal possessions (matc') and trousseau (jahdz),
claiming that she was under his guardianship.In his answer, Ibn
Lubabadescribedthe conditionsin which such an action is allowed.
In this instance, since the woman's husbandalreadyhad benefitted
from his wife's propertyfor more than a year, her fatherrequireda
compellingreasonto regaincontrolof it. This was acceptableonly if
he took possession for the benefit of his daughterand if he was not
acting for the purposeof injuringthe husband(idrdr bi'l-zawj). If,
however, he took possession because of some enmity between
himself andhis son in-law, thatactionwas not permissible,except if
the latterwas unreliable(ghayrma'mun'alayhi),e.g., unscrupulous,
a sinner,or a spendthrift(al-khalr al-fdsiqal-mitldf).In determining
whether or not a fathermay serve as guardianof a marrieddaugh-
ter, the notionof intentis againcritical.46
(5) A question addressedto Abu Ishaq Ibr.him al-Tunisi mentions

a father,who, following establishedGafsan custom, designatedhis
minor daughter'swealth (mal ibnatihi)as a life-gift ('umrd)for the
benefit of her husband.The people of Gafsareportedlypracticedthis
custom in orderto make betteruse of individualproperty('ald wajh
al-irfdq)- irrespectiveof the fact thatthe propertybelonged to the
wife and was not her father's to dispose of, even if ostensibly for
her benefit The customapparentlycausedsome confusion,especial-
ly in cases of divorce.In his response,al-Tunisistated categorically
that the father's use of his daughter'spropertyin this mannerwas
not permissible, thereby rejecting the custom. In support of his
position,he quotedal-Mazari(d. 536/1141), a Qayrawanijuristwho
mentioned that this custom was common in the Ifriqiyan towns of
Zawila and al-Mahdiyya,where, after"consulting"with his daugh-
ter, a father would use her propertyto purchasea house in which
husbandandwife would live together.47
When a fathergives a trousseauto his daughter,her husbandhas no

rightto enjoy it and no powerto intervenein her decisions regardingit.
The trousseau given by the father is like a gift, and the daughter's
ownership of it becomes complete at the moment that he makes his
46 Mi'ydr, vol. 3, 221.
47 Ibid.,vol. 9, 150.

intentionknown. If she is a minorunderinterdiction,she is considered

to be in possession of the propertyfrom the moment that her father
purchases it on her behalf. Although a woman's trousseaumight be
purchasedand given to her by her father,the evidence of the notarial
models suggests thatit was frequentlypurchasedby the fatherwith the
proceeds of the promptdower (naqd) paid by the husband.A future
husbandcould in fact designatepartof the dowerfor thatpurpose.The
Malikis also authorizea fatherto sell real estate given to the bride by
her futurehusbandin orderto make essential puchases.48The Malikis
permitthe fatherto purchasethe trousseauwith money deliveredby the
groom; if the dower consists of real estate or a slave, the father may
sell the propertyin orderto purchasethe trousseau.49He may use the
dower only to purchase clothes and house utensils for her and is
obligatedto deliverthese items to her in hernew home.
The notarialmanual of the Toledan Ibn Mughithcontains a model
documentin which the father specifies the items he purchasedfor his
daughterwith the money given to him by the groomand the exact date
on which the items were delivered to his daughter'snew home.50In a
statementof the law thatfollows the model, Ibn Mughithmentionstwo
circumstancesin which it is importantto have such a document:when a
woman claims, subsequentto her marriage,thather fathertook posses-
sion of the dower and did not deliver it to her; and when a husband
exercises his right to request an accounting of every item purchased
with his money.
Two notarial documents in Ibn Mughith's Andalusian manual
containformulasthat allude to a practicesimilarto the one mentioned
for Ifriqiya legitimizing a father's control of his daughter'sproperty.
According to the first formula, a father gives some of his daughter's
dower to her husband (fi wad'i al-ab ba'd saddq ibnatihi 'an
zawjihd).S1In the document, a fathertestifies in the presence of wit-
nesses thatwhen it became evident to him thathis daughter'shusband
was lacking in means and in need, he remitted(wa.da'a)to the lattera
certain amount of the delayed portion of her dower because he was
worried about his daughter(wa'l-nazarfi dhdlika li-ibnatihi). In the
same document,the son-in-law acknowledgeshaving acceptedthis re-
mittencefromhim. In his supplementaryfiqhexplanation,Ibn Mughith
cautionsthe fathernot to concede the entiredowerbecause,in the event
48 Khalil, Abregd, vol. 2, 55.
49 Ibid.
50 Ibn Mughith, al-Muqni', 76-78.
51 Ibid.. 78-9.

234 MAYASHATZMILLER
of divorce, the wife is entitled to the unpaid portion. The second model
provided by Ibn Mughith deals with a case identical to the one
contained infatwd (5).52 A father made a donation (nihla) to his virgin
daughter who was under his interdiction and guardianship, at the time
of the signing of her marriage contract to the groom, of a specific
house, in its entirety, including all rights and benefits, of known value;
for this reason he substracted the value of the house from her dower,
immediate and deferred (rafa'a lahd fl mahrihd mu'ajjalahu wa-
mu'ajjalahu). It is also possible that the invalidation of the Tunisian
custom to give the husband the value of the wife's dower or trousseau
in the form of a house had to do with the fact that in thisfatwd (5), only
a life-interest ('umra) in the house was given and this interest had to be
returned to the donor after the death of the beneficiary.53
A father's control over his daughter's dower and trousseau clearly
had a negative effect on her economic independence and status in the
family; such control might continue into the marriage and could be
reimposed by both a father and a husband. A document in the tenth-
century notarial manual of the Cordoban jurist, Ibn al-'Attr, demon-
strates how a father can interdict his married daughter.54 The father
testifies in the presence of witnesses that, having taken notice of his
married daughter's incompetence (safah) and failure to look after her
affairs (sa'i nazarihd li-nafsihd), he is placing her under interdiction
(hajr) and assuming the status of her guardian (wildya). The witnesses
must acknowledge that she has been married to her husband for two or
three years. In his supplementary fiqh explanation, Ibn al-'Attar indi-
cates that the father's interdiction of his daughter may continue until the
eighth year of marriage, at which time it expires whether he liberates
her or not.
In this section, we have considered the second stage at which
women acquire property, namely, the moment of marriage. A father
customarily gives his daughter a trousseau, and a husband provides a
dower (mahr or saddq) for his bride. This moment may be fraught with
tension, usually within the triangle composed of daughter, father, and
52 Ibid.,79-82.
53 For a formulafor an 'umra gift of a house,see Ibn Mughith,al-Muqni',
334-35. On the nature of the 'umra gift, see Schacht, Introduction, 158: "Archaic
forms of donationare (a) donationfor life ('umrd);Islamiclaw treatsit as an
unconditionaldonation;(b) donationwith the stipulationthatthe objectbecomes
the propertyof the survivingparty(ruqba);it is invalidon accountof uncertainty,
butsome authoritiestreatit in the sameway as the 'umra."
54 Ibn al-'Attar, Formulario notarial Hispano-Arahe, ed. P. Chalmeta & F.
Corriente(Madrid:Majma'al-Muwaththiqin
al-Majriti,1983),339-40.

WOMENANDPROPERTY
RIGHTS 235
husband,with the daughter/wifewho is subjectto guardianshipbeing

the weakest element. The prospect of propertychanging hands as a
result of marriageand the right of the father to take possession and
dispose of his daughter'sdowerwere causes for anxiety and misunder-
standing that might prompt a father to seek to regain control of the
propertyacquiredby his daughteruponher marriage.
The precedingevidence suggests that a young bride exercised only
minimal control over the propertythat she acquiredat the time of her
marriage.Although she legally acquiredthe sadcq-money, clothes,
utensilsor a house-her fatherfrequentlyexercisedeffective controlof
the property,with the assistanceof thejurists,ostensiblyfor her benefit.
The fatwCs reveal that a marriedwoman was sometimes unable to
exercise effective controlover dower propertydespite the fact that the
law regardedthe doweras belongingto her. The notarialmodels which
regulateandregisterthe processof the transferof propertyare designed
to insurethat fathersdo not abuse theirpower. These legal safeguards
were not always successful.
Althoughthe legal context of the twofatwas is similar,they resulted
in two different decisions. In fatwd (4), Ibn Lubaba held that the
father's action, while legal, shouldbe measuredagainst its underlying
intention,and that the father should be given the benefit of the doubt.
By specifyingthe daughter'sinterestas the criterionfor approvingsuch
an act, the mufti acknowledged the guardian's dominance over his
daughter as well as the existence of tensions and rivalries between
husband and father. In the mufti's opinion, it was preferablethat the
propertybe controlled by a father or a husband than by the woman
herself,even thoughshe was old enoughto be married.Infatwd (5), the
two muftis, first al-Mazari,and then al-Tinisi, maintainedthat local
custom encroachedupon the shar'i rule thatthe dower is the exclusive
propertyof the wife. It is possible that in the Maghrib,jurists did not
condone the practiceof the fatherusing the dowerto purchasea house
as theircounterpartsdid in al-Andalus.
On the surface, fatwd (5) suggests that it was the wife who
requestedthe opinion and thatwomen might go to court to claim their
propertyrights.By issuing suchfatwds,juristsostensiblywere defend-
ing women against their male relatives. But no matterhow reassuring
the muftis' words might be, the alliance of a father and a husbandno
doubt proved difficult to challenge, even for the most determined
daughter/bride.Both cases illustratehow a woman might lose her right
to control her propertythrough the dictates of custom ('ada) as she

moved from one instanceof dependencyto another.Marriageby itself

did not necessarilyconstitutea liberatingstep with regardto ownership.
Daughters versusMothersand Husbands

Complications might arise when mothers, themselves vulnerable as
females in issues of property,involved themselves in the handling of
theirdaughters'properties,eitherbeforeor aftermarriage:
(6) A question addressed to Ibn 'Attab (d. Cordoba 580/1184)

mentions a woman who made a gift to her two daughters,stipulat-
ing that when the first one died, her sharewas to pass to the other.
The muftideclaredthis stipulationillegal and revokedthe gift on the
groundthatit would deprivethe legitimateheirs of the first daughter
to die of theirshareof her estate.55The muftiinvalidatedthe gift on
the groundof protectingthe rightsof the heirs. For the same reason,
a marriedwoman, like a marriedman, can dispose of only one-third
of her property.56
(7) Ibn al-Sarraj (alternatively, al-Siraj), a fourteenth-century

Granadanmuftf, was asked about a husband who had purchased
properties(amldk)from his wife and utilized them for a year, at the
end of which the wife/seller died. At that moment, the deceased
woman's mother took possession of the propertiesand refused to
release them, claiming that she was her daughter'sguardian(wast).
In his answer, Ibn al-Sarrajcast doubt on the mother's motivation.
Why had she remained silent abouther claim until her daughter's
death?And why had she permittedher daughter,who, accordingto
her claim was subjectto her guardianship,to sell the propertyto her
husbandand collect the money?The muftiadvised the authoritiesto
examinefor possible fraudboththe sale-documentand the document
appointingthe motheras her daughter'sguardian.The matterwas
referred to a second mufti, al-Haffar, who concluded that the
mother's actions amountedto deprivingher daughter'soffspringof
theirlegal inheritanceof theirmother'sestate.He recommendedthat
her actions be checked carefully because they point to improper
conduct on her part (sa' tasarrufiha).57
55 Mi'ycr, vol. 9, 127-28.

56 On this distinctive Maliki rule, cf. Linant de Bellefonds, Traite, vol. 3, 332.
57 Mi'ydr, vol. 5, 242; on al-Sarraj and al-Haffar (cited below), see L6pez-
Ortiz, "Fatwas Granadinas,"87-89; on the wasi, see Schacht, Introduction, 173.

WOMENANDPROPERTY
RIGHTS 237
The precedingcircumstancesare similar to those of a case broughtto

juristof Tlemcen:
Qasimal-'Uqbni, a fifteenth-century
(8) A man gave his wife as her dower one-half of an orchard,in

joint ownership ('ala 'l-ishd'a), and she purchasedfrom him the
other half. For the next seven years, the husband derived income
from the garden as an owner, with the knowledge of his wife's
mother ('ald 'ayn wdlidat al-zawja), until the wife secured a khul'
divorce from her husband,ostensibly by giving him the orchardin
returnfor her release from the marriage.58(In a khul' divorce the
wife redeemsherselffromthe marriagein returnfor a consideration;
I assume that the husbandcontinuedto exercise control of the or-
chard.)Subsequently,the wife's motherproduceda documentdated
five years priorto the divorce (at which time the gardenwas in the
husband'spossession), confirmingthather daughterhad transferred
(sayyarat)the gardento her as paymentfor a debt. A sale-document
providedby the mothermentionedthe daughter'sacceptance(qabul)
of the sale offer, which made the contractcomplete and the trans-
action binding, but it did not mention the mother's having taken
physical possession of the property.59Two questions arose: Does
the mention of acceptancein the documentmake the sale valid? Or
did the wife deceive her husbandby causing him to believe that she
was relinquishing the property as compensation for the divorce,
when, in fact, she previouslyhad transferredpossession of it to her
mother?The situationwas furthercomplicatedas both transactions
took place withinthe seven-yearperiodduringwhich a wife remains
under parentalinterdiction.Allowance of the sale might invalidate
the divorce.Accordingto al-'Uqbani,the failureof the wife's mother
to producethe documentat the time of the divorcenullifiedher claim,
because the physical transferof possession was never completed
and the husbandcontinued to utilize the property.He added that,
according to a minority opinion, the terms of a divorce take
precedenceover an incompletesale (mddin'ald kullihal).60
Property disputes involving mothers and daughters sometimes

resulted from confusion over the legal situation of a young married
58 On this form of divorce, see Schacht,Introduction, 164.

59 On qabal, see ibid., 22.
60 Mi'ydr, vol. 5, 98. On
al-'Uqbani and his hisba manual, see Muhammadal-
'Uqbani, Un Traite de Hisba, ed. A. Chenoufi (Damascus: Institut fran9ais
d'arch6ologie orientale, 1967).

woman with regardto her property.We have seen that women do not
automatically emerge from interdiction(hajr) upon marriage.In the
cases examinedhere,the wife's freedomto sell or gift propertyrequired
her guardian'sapprovalif she was still subject to interdiction,which
normally was the case during the first year of marriage-unless her
guardianhad liberatedher in the presence of witnesses. The fact that
the muftisrecommendthatdocumentsbe verifiedby witnesses pointsto
theirrelianceon a sophisticatedsystemof notarization.
A propertysale between husband and wife registered in Granada
during the late fifteenth-centuryindicates that separationof property
between spouses was indeed practiced.61As in any sale document,the
notary identifies the two parties,the propertysold, the price paid, the
validation of the transaction by taking possession (qabd), and the
conferringof completeownershiprights.Anotherdocumentin the same
collection, also from Granada, dated 1495, mentions a gift from a
husbandto his wife of 220 silver dinars.62Concernfor the welfare of
daughterswas a common motive in making propertydecisions. In a
last will and testament (wathlqa) from fifteenth-centuryGranada, a
mother providedfor her daughtersby purchasingwheat, flax, grains,
oil, honey, barely andflourfor them.63
In spite of the limitations on their control of property, married
women appearin great numbersin the legal sources, freely disposing
of theirproperty.Fatwds describinggifts from a motherto her daughter
or daughters demonstratehow propertydescended directly from the
controlof one female to anotherin the next generation.Whetheror not
such a gift was intendedto circumventthe inheritancerules, it neces-
sarily reducedthe size of the estate and thereforemight result in legal
action. By invalidating the mothers' actions and criticizing them for
their failure to secure the appropriatedocumentsand use them at the
appropriatemoment,the jurists were not necessarily manifestinghos-
tility towardmothers,but perhapsmerely upholdingthe legal normby
protectingthe daughter'sright to obtainher divorce and her children's
rightto theirinheritance.Nonetheless,thefatwdspointto an outcomein
which women forfeited property to males in a court dominated by
males.
61 Seco de Lucena,
62 Ibid., 94 Watha'iq, 113.
63 Ibid., 98.

Wivesand Husbands
Wages
The law holds that wages are due under certain circumstances,
specifically, if the services renderedare absolutelynecessary.Whether
or not a husbandis entitledto wages for servicesrenderedto his wife is
anothermatter:
(9) The Granadanmufti, Ibn Lubb, was asked about a husband

who, afterrepresentinghis wife in the division of an inheritanceand
securingher share, sought to collect wages (ujra) for his labor.The
muftiruledthatno wages were due for normaleffortsexpendedby a
husbandin pursuitof his wife's interests.However, if the husband
invested greaterthannormalefforts in securingher entitlement,she
was liable for the expenses, because he neglected his own financial
interests(maslaha) on her behalf. If he undertookthis task without
notifying her that he might seek some compensation (min duna
shay'), then he had committedhimself, and no payment was due.
(The fatwa does not contain any details about the nature of the
estate, the location of the properties,the date of the dispute, or the
amountof compensationsought).64
A second case in which a husbandrepresentedhis wife in a division of

inheritancehad morefar-reachingimplications:
(10) An anonymous fatwd mentions a husband who received a

mandatefrom his wife to claim her share of an inheritance.65The
husbandclaimed and received his wife's share,and later purchased
it from her. Subsequently,he initiateda litigationon the groundthat
the shareshad not been properlycalculated.After he won the case,
his wife approachedhim requestinga supplementto the share she
had received (she may have felt that her husbandhad cheatedher).
The jurist who was consulted about this case confirmed the hus-
band's right to demand a second division, but rejected his wife's
claim that she was entitled to a supplement. The mufti drew a
distinctionbetween the two acts: The wife sold a determined,well-
definedproperty;that sale was completeand terminatedher rightsin
64 Mi'ydr, vol. 8, 368; on Ibn Lubb and his fatwas, see J. L6pez-Ortiz,
84-85.
"FatwasGranadinas,"
65 Amar. Consultations, 13 19091. 264.

240 MAYASHATZMILLER
the property. Subsequently, the property became the subject of

anotherlegal transaction,which resultedin a second division. (This
fatwa also appearsin the chapteron sales, where it is specified that
a thirdparty-and not the husband-representedthe woman).66
The underlying reason for Ibn Lubb's decision is highlighed in a

comment made by the contemporaryGranadanjurist, Ibn Juzayy, in
connectionwith the case, "If someone performswork for someone else
without being directly ordered to do so, or procuredfor him some
benefit, whether money or otherwise, his wages should be paid; [the
same holds] if he represents(ndba) someone in a matterin which he
has no choice but to hire someone to performthe work or if he has no
choice but to spendmoney."67
The notarialforumulariesindicatethata contractof hire must speci-
fy the precisenatureof the work, its location,the termsof employment,
the identityof the contractingparties,and the amountof wages.68
Importantconclusionscan be drawnfrom these cases. First,women
knew that they were entitled to inherit and made arrangementsto
acquire their respective shares.69 Second, the fact that a woman
received her share through the good offices of her husband may
indicate eitherthat she could not be presentat the division of the estate
due to the presence of other males or that she chose not to be present,
preferringto call upon a male representative.The question of whether
or not a woman could receive her inheritancewithout her husband's
assistance is importantfor our understandingof Ibn Lubb's decision in
fatwd (9). The wages claimed in this case had not been specified or
agreed upon prior to the beginning of the job. Ibn Lubb ruled in
accordance with the legal norm: he indicated that the husband was
entitledto wages if he incurredexpenses or actualloss while acting on
behalf of his wife, but that the burdenof proof was on him, due to the
possibility of a false claim. On the other hand, that the husband
demanded payment for representinghis wife, that the matter came
before a judicial authority, and that the husband consulted a mufti,
indicates that payment for such representationwas probably not a
66 Ibid., 12 [1908], 477.
67 Ibn Qawanin,210.
68 See,Juzayy,
for instance,IbnMughith,al-Muqni',196-207.
69 The Qur'anicinheritancelaw which gave women unequivocalrights to
inheritfromfamilymembershas long beencelebratedas the majorimprovement in
the statusof womenunderIslam.On the legal and social aspectsof women'sin-
heritance law, see David S. Powers, Studies in Qur'an and Hadlth: The Formation
of theIslamicLawof Inheritance(Berkeley:Universityof CaliforniaPress,1986).

commonpractice.IbnLubb'sdecisionnot to accede immediatelyto the

husband's request,but to requestdemonstrationof losses on his part,
indicates that the husband's representationof his wife was in accor-
dance with the norm,but thathis claimingwages was not.
With regardto women and inheritance,the evidence suggests that
women received theirinheritancesharesbut probablywere not present
at the division of the estate. I do not know if it was a common practice
for husbandsto representtheirwives or for male relatives to represent
unmarriedwomen, and I do not know if women in fact received their
inheritances, although I strongly suspect that this was the case. The
fatwds indicate that females were dependenton male relatives for the
receiptof their sharesbut thattherewas no joint ownershipof property
between spouses.
Paymentof rentfor a matrimonialhome owned by a wife

The principle of separation of property and the fact that a wife
normally brings property into the marriage sometimes resulted in
frictionbetweenspouses:
(11) Ibn Lubb issued afatwd in which he dealt with the questionof
whether a husbandwho lives togetherwith his wife in her house is
underany obligationto pay her rent (kird'),if she asks for it. In his
answer, Ibn Lubb said that it was common knowledge (mashhur)
that a husbandwho lives in his wife's house is underno obligation
to pay rent (Id shay'a 'alayhifhi). This is the establishedjudicial
practice (wa-bihijard al-'amal) as manifestedin the judgmentsof
the qadi Ibn Rushd (d. 520/1126), and it is based on a rule
regulating a husband's cultivation of his wife's land or vineyard.
The juristsof Cordobajustify the establishedjudicial practiceon the
groundthat it results in a benefit for the wife (maslahat al-zawja)
and in an improvementof conjugalrelations(tahsin al-'ishra). But
some jurists,IbnLubbcontinued,have deviatedfrom the established
judicial practice,apparentlyafter a qadi living in a town where the
establishedpracticewas not followed issued a judgmentrequiringa
husband who lived in his wife's house to pay rent to her; others
followed this judgment,until it, too, became a practice.The sound
legal view, Ibn Lubbconcludedis thatthe husbanddoes not have to
pay rentto his wife.70
70
Mi'ydr. vol. 8, 290. Idris. "Le mariage en Occident musulman," 163, cites

(12) An anonymous fatwd mentions a father who allowed his

daughter'shusbandto live in her house after the marriagewithout
paying rent. When the daughterreached the age of majority, she
demanded rent from her husband. The mustafti posed several
questions:Was either the father or the husbandliable for the rent?
Should the husbandbe allowed to continue to live in the house on
the basis of the arrangementwith his father-in-law? The mufti
responded that the father had acted improperly: No father (or
guardian)may give away a minor'sfunds or do anythingwith them
that is not permitted.Here, the muftiupheld the rights of the minor
woman againsther fatherand husband.
This result may be explained on the basis of evidence presented

earlier. A father/guardianhas wide discretionwith regardto property
belonging to his minor daughter:He may take possession of her gifts,
dower and inheritance;claim debts owed to her;lease out real property
belonging to her (at fair marketvalue); andhire out her animals.At the
same time, Sunnijuristsspecify thatwhen a minorgirl is liberatedfrom
her father'sinterdiction,she mustrespectany agreementscontractedby
him, even if the durationof the contractcontinuesinto the periodof her
independence.7' It was no doubt because the young wife trustedthe
judicial system that she attemptedto nullify her father's arrangement
with her husband.Notice the similaritybetween the propertiedwife's
attemptto collect rent fromher husbandin this case and the husband's
attemptto collect wages from a propertiedwife infatwd (9).
Ibn Lubb undoubtedlywas correct about the established judicial
practice,which could not have been popularwith wives. Both spouses
exhibited a detached, unsentimentalattitude toward their respective
partners.Fatwc (11) gave Ibn Lubb an opportunityto trace the history
of a practice and to express his views on maritalvalues. The rule of
division of propertybetweenhusbandandwife placed each spouse in a
position of choice with regard to any action undertakenby his/her
partneron his/herbehalf, sometimesleading to suspicionand cheating.
As is clear from Ibn Lubb'sfatwd, the jurists consideredthe issues in
broader terms, demonstrating a sensitive approach to marriage
relationships.72
seven fatwcs in the Mi'yar that deal with this issue.

71 Linant de Bellefonds, Traite, vol. 3, 225-26.
72 Mi'yar, vol. 9, 137-38.

A wife's donationof propertyto her husband

According to Maliki legal doctrine, a gift is invalid if its object is
returnedto the donor.Considerthe following two cases in which a wife
made a gift to her husband:
(13) In a question addressedto Ibn 'Attab(d. Cordova,462/1069),

a wife gifted (wahabat) her husband irrigationrights to a water
scoop (saniya) togetherwith the delayed portionof her dower (kali'
saddqiha).The husbandused the water to irrigateland belonging to
him and used the surpluswaterto irrigatelandbelongingto her. The
mustafti asked whether the donation was invalidated by the hus-
band's use of the water for the benefit of the donor. Ibn 'Attib
responded that the donee's use of the water to irrigatehis wife's
field does not invalidatethe gift, althoughit was reprehensiblefor
her to benefit from it (yukrahulahd al-intifa' minhu), adducing, as
supportfor his conclusion,a prophetichadlth.73
(14) Ibn al-Hajj(d. 550/1155 in Cordoba)was asked about a wife

who gifted her husbandpropertyin a village, apparentlyan orchard
for which the husband contracteda sharecroppingagreement for
irrigationand cultivation(musdqdh).74 Althoughthe agreementwas
corroboratedby witnesses (bayyina)as recordedin a document,the
witnesses did not include the wife/donor. The husbandproduceda
second documentindicatingthathe had administeredand supervised
the property.The validity of the donation was challenged on the
groundthata donationdoes not become completeuntil the donorhas
given permissionto take possession;the woman's failureto serve as
a witness to the irrigationcontractsuggested that she had not done
so. Ibn al-Hajjrespondedthatthe gift was valid, as confirmedby the
two documents.75
Infatwa (13), the objectof the wife's gift, irrigationrights,was used

to irrigateher field;becausethe objectof the gift was being used for her
benefit, a case could be made thatthe gift had been returnedto her and
was invalid. Khalil distinguishesa gift betweenspouses from a general
gift.76Tangible things such as real estate or slaves may be gifted by a
73 Ibid., vol. 9, 125.

74 For examples of musdqdhcontractsin al-Andalus, see Ibn al-'Attar, 83-92.
75 Ibid.
76 Khalil, Abrege, vol. 3, 151-52.

244 MAYASHATZMILLER
wife to her husband, and the transactionis valid even if the husband
does not take possession (qab.d),as requiredin the case of a general
gift.77Infatwds (13) and (14), the mufttsrespectedthe declaredinten-
tions of the wife/donor and awardedthe husbandfull ownershipof the
gifted properties,despite doubts that were raised about the legality of
the gifts. By allowing a wife's gift to her husbandon the groundthat it
respectsher wishes, withoutasking any questions,thejuristsfacilitated
the control of the wife's property by the husband. This trend is
reinforcedby the Maliki rule that a wife may not dispose of more than
one-third of her property.78The complex nature of gifts between
husbands and wives is compounded by other factors. Although the
principle of separationof spousal propertywas upheld in al-Andalus,
some women gave their husbands the right to exploit their property.
Accordingto Ibn Juzayy,if a wife gives her husbandthe right to enjoy
the usufructof her property(imtd), as is the custom (mdjarat al-'da)
in al-Andalus,it cannot appearas a conditionin the marriagecontract;
the gift is valid only if it is performedvoluntarily(tatawwu'an) and
subsequentto the validationof the contract.79
The Granadancollection of notarizeddeeds containstwo examples
of propertygifts from husbandto wife. The first document,dated 1485,
specifies the names of the couple andthe amountof the gift, thatis, 220
silver dinars from the new mint and a gold brocade held by a third
person.80The witnesses testify that the wife accepted the husband's
offer and took possession of the gift. The second document,in which a
house is gifted, specifies the location of the house, the grain in it, and
the water source next to it; it is noteworthythat a afaqfh took posses-
sion of the propertyon behalf of the wife.81 Although it is not clear
what necessitated these gifts, in other cases gifts reflect an economic
reality: al-Andalus was a traditional agrarian society in which land
and irrigationrights were basic assets that commonlywere transferred
from one generationto the next. A commutativecontract(mu'dwada)
between two brothersin Granada,dated 1485, deals with a quarterof
the quota of irrigationwater of the GrandCanal (al-sdqiya al-kubrd)
below the city, for the night of every fifth day of an eight-daycycle.82
In cases in which one spouse uses the other'sproperty,the arrangement
77 Ibid.
78 See Linantde Bellefonds,Traite,vol. 3, 372.
79 IbnJuzayy,Qawtnin, 159.
80 Seco de Lucena, Wathd'iq,document no. 51, p. 94.
81 Ibid., document no. 53, 96.
82 Ibid., document no. 52, p.
p. 95.

mustbe acknowledgedby witnesses, as evidencedin a notarizeddocu-

ment from Granada,written in 1485, in which a son confirms that he
and his late father undertookirrigationwork and constructionin his
mother'sorchard.83
At the otherend of the "gifting"spectrum,wives gift theirpropertyto
their husbands, including the deferred portion of their dower.84In
fatwds (13) and (14), wives chose not to retainownershipof fields and
irrigation rights and, by divesting themselves of such assets, were
conceding economic power. Although it is not immediately apparent
why a woman would gift some or all of her propertyto her husband,
includingher futuresecurityin the event of divorceor widowhood,this
seems to have been a commonpractice.The notarialevidence indicates
that social and economic realitiesmight make it necessaryfor property
to be transferredfrom a husbandto a wife as well as from a wife to a
husband.The lattertype of transfermay be explained by the fact that
the propertyprobablywas bettermanagedby the husband;if the wife
had retained it, she would have had to hire laborers to irrigate the
fields. The gifts may also have facilitatedthe subsequentinheritanceof
the propertiesby the women's children.
Claimingthe mahrfromthe husband'sheirs

The delayedportionof the dower,due upon dissolutionof the marriage
througheitherdivorceor deathof the husband,sometimesprovedhard
to collect.85 Two fatwds, one from the Maghrib, the other from al-
Andalus,attestto the need to call uponjuriststo upholdthe law.
(15) Al-Waghlisi (d. in the centralMaghrib,786/1384) was asked

about a widow who wanted to collect her mahr from grain that her
husbandhad left in storage; it was estimatedthat the value of the
grain was equal to or less than the amount of the debt. Was it
acceptablefor the administratorof the estate to instructthe widow to
take what she was owed and leave the rest for charity(khudhlhifi
mahriki wa-md baqiya fa'truklhi lilldh)? Or should the grain be
removed from storageand weighed so thatits value could be deter-
mined (weighing is a pre-requisitefor the qabd of fungible goods)?
The mufti respondedthat it was illegal to compensate the woman
without weighing the grain and calculating her exact entitlement;
83 Ibid., document no. 56, p. 99.

84 This last is discussed in the next section.
85 Idris, "Lequestion
mariage," 161.

failure to do so would invalidatethe transaction,which is similarto

a sale.86
A secondfatwc from an unspecifiedlocality in al-Andalusmentions a

similarset of circumstances:
(16) Upon the death of her husband,a widow demandedpayment

of her saddq from her children. But one of the sons had sold a
gardenthatwas partof the estatebefore the widow could collect her
share. The sale reducedthe value of the estate, which was to serve
as the basis for calculatingboth the dower and the inheritance.The
mufti confirmed that if a debt is payable on death, the deceased's
propertiesmay not be sold before the debt is paid. Persons affected
by such a sale are entitledto sue the buyer.The widow was entitled
to block any actionby the heirsuntilher debtwas paid.87
For the Malikis, the saddqhad become a determiningelement in the

validationof a marriagecontractby the tenthcentury.88For a marriage
to be valid, the bride-groommust give a dower (in the form of property
with a commercialvalue) to his futurewife prior to consumation.By
the fourteenthcentury,both Khalil in Egypt and Ibn Juzayyin Granada
viewed as legitimate a young wife's acquisitionof the dower through
qabd,89which seems to have become an accepted practicedespite the
fact that it did not initially appear in the lawbooks and that not all
jurists approved it.90 As mentioned, although the wife immediately
acquires property rights to the dower, it is her legal guardian who
physically takes possession (qabd) of it. Thus, when the marriageis
consumated,a young wife generally is not in possession of all of her
property.91
The division of the dower into two portions,one given to her before
the wedding (naqd), the other delayed (kali') until a pre-determined
86 Mi'ydr, vol. 5, 89.

87 Ibid., vol. 5, 99.
88 See Ibn
Zayd al-Qayrawani,Rissla, 90-91. The increasing importanceof the
dowry can be seen by the detailed discussion of its nature as property and how it
affects the validity of a marriage.
89 On different kinds of dowries which qualify and disqualify a marriage, see
Khalil, Abrdgd, vol. 2, 44-62. Ibn Juzayy, Qawanin, 152-55. On the differences
between the Maliki and the other schools in this respect, see Linant de Bellefonds,
Traite, vol. 2, 199ff.
90 Ibn Juzayy, Qawanin, 153; Linant de Bellefonds, Traits, vol. 2, 218-19.
91 Dardir-Dasiqi, Sharh, vol. 2, 303. See above (discussion of Daughters
versus Fathers and Husbands).

date, appears in all marriage contracts from Granada and in the

notarialmodels. The notarialmanualof Ibn Mughithcontains several
models dealing with the use of the deferred dower in different
situations.92One model deals with the renewal of a lost or damaged
saddq-document:a husbandtestifies in the presence of witnesses that
he contractedto pay his wife a dower, thathe paid some of it, and that
the remainder(the kali') was due to be paid at a given date.93Had the
deferreddower alreadybeen paid, the documentwould have specified
that fact. If the due date has elapsed (inqa.da ajluhu), the husband
undertakes to put it right. Another notarial model provides for an
notarized recognition of the payment of the deferred dower by a
divorcee, promptedby husbandswho were wrongly sued.94Two other
models demonstratehow a wife can renounce her deferreddower in
favor of her husband:The first is a deposit (wad') in which a wife who
is sound of mind and body renouncesthe deferreddower in gratitude
for her husband's fine companionshipand conjugal relations (indeed,
an extraordinarydocument!)with her (tayyibatanbihi nafsihdshukran
'ald jamil suhbatihiwa-husnmu'dsharatihilahd).95The husbandmust
acknowledgehaving received this concession (equivalentto a hiydza,
as dower is property)from her in the same document. In the second
document the wife absolves her husband of responsibility for the
unpaid portion of the dower in returnfor his not marryinga second
wife and not requiringthatshe travelfromher home town.96
Two marriagecontractsfromfifteenth-centuryGranadaillustratethe
relationship between the prompt and deferred dower.97In the first
document,dated 1438, 'All b. Ibrahimmarriedhis daughter,Fatima,to
a young man named Abfi Ishaq Ibrahim, for a saddq of 600 silver
dinars; of this sum, 'Ali took possession from the groom of 375
dinars.98The remaining275 dinarswas due two years subsequentto
the date of the document.In the second document, dated 1488, Abfi
Ja'farAhmad al-Fakhkharmarriedthe virgin, Umm al-Fath,daughter
of Abi Qasim al-Hannat,in returnfor a saddq of six gold dinars and
92 IbnMughith,al-Muqni',68-72.
93 Ibid. 68-69.
94 Ibid., 69-70.
95 Ibid., 70.
96 Ibid., 71-71.
97 Seco de Lucena, Wathd'iq, document no. 4, pp.8-9, document no. 61, pp.
104-06.
98 The silver dinaror dinar 'ashriyya was in use in Granadaduringthe
fifteenthcentury.Equivalentto ten silverdirhams,it servedas a usefulalternative
to the heavy gold dinar. See R. Arie, L'Espagne musulmaneau temps de Nasrides
(1232-1492)(Paris:de Boccard,1973),358.

an arrayof fine silk cloth, which her brotherAhmad, acquiredon her

behalf. A deferred dower of two gold dinars was due six months
subsequentto the date of the document.
The deferred dower is more importantto a wife than the prompt
dower. On the date that it becomes due, she usually has been liberated
from interdictionas a minorand is free to use the resourcesfor her own
benefit. In spite of the care takenby jurists and notariesto registerthe
exact amountof the deferreddower and its due date, the circumstances
described infatwas (15) and (16) recur frequently in our source: A
widow's claim to the balance of her dower, or her share of an
inheritance, is ignored by the other heirs following the death of her
husband.Disregardfor a widow's claim was especially likely to occur
when several heirs were competingfor the estate. The concurrenceof
the two muftrsleaves no doubtregardingthe mannerin which Muslim
jurists regarded this particular situation, likening the dower to a
contractof sale or hire. Althoughthefatwas provideevidence only for
how the law should be applied, it is significant that the muftis upheld
and confirmeda wife's rightsto the delayedportionof her mahr.
Contributionto commonproperty
Although a husbandand wife held their propertyseparately,conjugal
partnershipcreated opportunitiesfor joint investment. In such cases,
carefuldocumentationwas requiredin orderto avoid complications:
(17) A mufti by the name of Abf 'Abdallah al-Qara'awas asked

about a house owned jointly by a man and his wife. The man had
built the house, and his wife acknowledged(i'tarafat) that she had
purchased the building materials and paid her husband for the
expenses incurred.When the man died, his heirs claimed that it was
he who had paid for the constructionof the house, which therefore
belonged to his estate. Neither party could supportits claim with
writtendocuments.It also emergedthatthe couplejointly owned an
irrigatedfeddtn,a berrytree (tat) andtwo piles of driedmanure.The
husbandhad purchasedthefedddn and the berrytree from his wife,
giving her the manurepiles in lieu of payment.But the husbanddied
without having summonedwitnesses to attest to the sale, leaving
his wife to recover her property from the other heirs. The mufti
responded that if the wife could produce testimonial evidence
(bayyina)thatshe had paid for the constructionof the house and that
her husbandhad acknowledgedthis, then she had a valid claim. In

the absence of such evidence, she would be requiredto swear an

oath to the truth of her claim; if she refused, the oath would be
offered to the otherheirs. The muftiobservedthat the husband'suse
of an imperfect verb in the phrase "we shall give you" (nu'tika)
indicatesthatthe transactionhad not been completed,addingthatthe
woman's acquiescencewas indicatedby her silence (sukaitihd).99
Commercial transactionsbetween spouses were a common prac-

tice.?00We have already seen that some wives sold their husbands
whatever propertiesthey broughtto the marriageor acquiredsubse-
quently. In some cases, a spouse would forgo the formalities of the
sale, or of a notarial recognition of her contributionto an economic
enterprise,perhaps because the transactiontook place between two
closely-related individuals.101If a dispute arose, the neglect of the
requisiteformalitiesoftenresultedin a loss for the wife.
Sisters and Brothers

The frequentmentionof gifts betweenbrothersand sistersin thefatwds
suggests thatthis was an importantmechanismfor transferringproper-
ties to and from women, perhapsin an effort to circumventthe inheri-
tancerules.By theirnature,however,gifts are easily contested.
(19) Sidi Misbah(d. Fez, 705/1305) was asked to issue afatwd in a

case in which a woman gifted to her brotherproperties(amldk)over
which he exercised effective control(kdna lahd bi-yadihi).When a
disagreementarosebetweenthe brotherand a thirdparty,the brother
denied the existence of the gift and asserted that the properties
belonged to his sister. Following her brother's death, the sister
claimedthatthe propertywas hers on the groundthathe had made a
formal acknowledgment (iqrdr) denying the gift. Subsequently,
when she was asked if she had gifted the properties to him, she
repliedthatshe had, insisting,however,thathis denial indicatedthat
he had not taken physical possession of the property.The mustafti
asked whether the gift was invalidatedby the recipient's denial of
the gift or validatedby the donor'sacknowledgementof it. The mufti
99 Mi'ydr,vol. 5, 39-40. I have not been able to identifythe Muhammad

Abi
'AbdAllahcitedhere.
100 See, for example,ibid.,vol. 5, 39, 242.
101 See, for example,theGranadan documentmentionedabove,note81, where
a son anda fathertestifythattheycultivatedthe mother'sland.

respondedthat the man's childrenwere entitled to make an agree-

ment with his sister regardingthe gift; such an agreementwould
make her liable to them for the property,because it had belonged to
theirfather.02
A brother'slegal capacitywith respect to his sister was of conside-

rable importance, as indicated by the notarial documents. A brother
may become his sister's guardian,give her away in marriage,and take
possession of her dower. In each instance,he has the same power as a
father.103He may fix the amountof the dower and the timing of the
delayed portion, and he may delay its transferto her. A brotheralso
exercises legal power over his sister in connectionwith her inheritance
from their mother or father. He may take possession of his sister's
share on her behalf at the moment of the distributionand may delay
transferof the propertyto her.
An iqrdr from fourteenth-centuryJerusalemillustrates the double
aspect of a brother'scontrolover his sister's dower and inheritance.In
1379 Fitima, the wife of the late Miisa, acknowlegedhaving received
from her brother,Muhammad,the executorof her husband'sestate,her
dower and her clothing, to which she was entitled. She also acknow-
ledged that she continued to receive from her brotherher share in a
house left by theirfather,the value of which was known to her.'04
Similarly,the fifteenth-centuryGranadandocumentscontainseveral
examples of gifts, sales, and depositsof propertybetween brothersand
sisters.A complicatedtransactioninvolving severalinheritedproperties
points to underlying motives similar to those in fatwd (19). In June
1464 Fatima bt. 'Aliya purchased a field (faddan) owned by her
brother,Ibrahim,for fourteen gold dinars.'05In a separatedocument,
dated November 1464, the same Fatima testified in the presence of
witnesses that she had in her possession thirty-two Granadangold
dinarsof high qualityfrom the new mint and two gold dinarsfrom the
previousmintwhich were the propertyof her brother,Ibrahim,andthat
she was now returningthe money to him. She also testified that she
was giving her brotherhalf of the fadddn that she previously had
purchasedfrom him, while remaininga partnerwith him in the second
102 Ibid., vol. 5, 160. On the Misbhhiyyamadrasain Fez, namedafterthis

jurist: see M. Shatzmiller,"Waqfkhayriin 14th-centuryFez."
103 Ibn
Mughith, al-Muqni', 44; Ibn Juzayy, Qawanin, 152; Khalil, Abrege,
vol. 2, 19.
104 Lutfi, "lqr&rs,"269-73.
105 Seco de Lucena, Wathd'iq,document 19, p. 41.

half. In the same document,the brotherconfirmed that he had taken

possession from her of the aforementionedproperties.'06In August
1469, the same brother,Ibrahim,boughtback from his sisterthe half of
thefadddnremainingin her possession for forty dinars,which she took
fromhim.07
Property relations between siblings have a special quality about
them. On one hand, they serve to perpetuatepatrilinealcontrol of a
woman's property,as in the Jerusalemiqrar; on the other hand, they
may serve as a ruse to disguise the complicityof the family againstthe
outside world, as appearsto have been the case infatwd (19) and the
Granadandocuments.
Challengesto Women'sPropertyDecisions
Although a married woman was free, in theory, to dispose of her
individual property,the following cases indicate that attemptswere
madeto limit andconstrainthatfreedom:
(20) When a Cordobanwoman was asked on her deathbedin the

presenceof her heirs if she would agree to endow her orchardto the
mosque, she replied by nodding her head. The validity of the
endowmentsubsequentlywas challenged,presumablyon the ground
that the dying woman had not been sound of mind and body at the
momentwhen she createdthe endowment.Ibn Lubaba(d. 314/926)
respondedthat if the witnesses were certainthat the woman under-
stood them and that they understood that her nodding indicated
authorizationon her part(tajwizlahd), the endowmentwas valid. In
respondingto this question,the muftichose to favor the interestsof
the mosqueover those of the family.108
(21) In fourteenth-century Fez, a man complainedthathis wife was

neglecting funds that she had inheritedfrom her father, allowing
them to dissipate.A mustaftiaskedthe Fasi mufti,Sidi MisbSh,if the
husbandhad the right to administerhis wife's propertydespite the
fact that she refused to allow him to do so. Did he have any say in
this or not? The mufti respondedthat if her losses did not exceed
one-thirdof her net assets, the husbandhad no right to intervene;if
106 Ibid., document 19,

pp. 42-43.
107 Ibid., document 19, 43.
108 Mi'yar, vol. 7, 104. p.

252 MAYASHATZMILLER
they did exceed one-third,then he was entitledto interveneeven if

she objected.109
A challenge to a woman's handlingof her propertymight emanate

from her heirs, as infatwd, (20) or from her husband,as infatwd (21).
Ibn Lubababased his decision to validate the woman's endowmentin
favor of the mosque on the groundthat she had been of sound mind at
the momentthatshe createdthe endowment.Infatwd (21), Sidi Misbah
confirmed a marriedwoman's right to dispose of up to a thirdof her
assets and the husband's right to preventher from disposing of more
than that. 10
Even thoughboth cases revolve aroundthe rightof a family member
to intervenein a female's decisionregardingproperty,it is necessaryto
distinguishbetween them. The woman infatwa (20) was subjectto the
rule that a person on his deathbedmay dispose of no more than one-
thirdof his or her propertyby means of bequests, gifts and charitable
donations. The purpose of this restrictionis to preventsomeone from
harmingthe interestof family membersin circumstancesin which his
or her judgment and capacity to reason may be impaired.1 Whereas
the Hanafis do not subject an acknowledgement of alienation of
propertyto the scrutiny of the court, the Milikis do inquire into the
intentionof the acknowledger.12Infatwd (21) thereis no indicationof
any unusual condition in the wife's situation that would justify the
court'sinterventionin favor of herhusbandor otherfamily members.
The twofatwas drawattentionto the possibilityof deprivingwomen
of control of their property by drawing up a notarial document in
which, at the family's request, a woman is declaredlegally incapable
of handling her affairs, returningher to the status of being interdicted
(mahjiir).ll3Togetherthese legal measures,the limitationimposed on
woman's propertyrights by the one-thirdrestrictionon bequests, and
the possibility of declaringher incapable(ma.hjara),place constraints
on her freedom to dispose of property.Of the two measures, hajr is
reservedexclusively for adultwomen.
109 Ibid.,vol. 5, 161-62.

110 Khalil,Abrege, vol. 3, 64.
11 Ibn Qawdnin 277.
112 Juzayy,
Noel J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh
UniversityPress, 1964), 99-100. See also Linantde Bellefonds,Traite, vol. 2,
366ff., comparingHanafiandMalikilaw on gifts.
113 For a similarformulacommonin Cordobain the tenth
century,see Ibnal-
'Attar,Formulario notarial Hispano-Arabe,614.

WOMENANDPROPERTY
RIGHTS 253
PatternsRelatingto the Implementationof Women'sPropertyRights

Two methodologicalobstaclesstandin the way of achievinga compre-
hensive understandingof the implementationof women's property
rights in the periods and regions under considerationhere. First, the
fatwds that I have discussed represent only a small number of the
fatwds available in the Mi'ydr. Second, by their nature,fatwas shed
more light on legal issues thanon socio-economicissues. As such they
providegreaterinsightinto the problemsinvolvedin the implementation
of property rights than court documents do. Evidence from other
sources, including notarial models, archival deeds, historical texts,
chronicles and literaryworks, must be integratedwith the evidence of
thefatwds if we are to develop a full and comprehensiveunderstanding
of the status of women with respect to property. Keeping these
obstacles in mind, I shall attemptto identify severalpatternsrelatingto
the implementationof women's propertyrights in al-Andalusand the
Maghrib:
1) The acquisitionandcontrolof propertyoccurredat every stage of
a woman's life, from birth to death, and before, during, and after her
marriage. Thus, ownership and control of property were a direct
extension of a woman's person. The women mentionedin our source
owned a wide varietyof properties,includingjewellery, clothes, partor
all of a house, a field or a garden,unspecifiedwealth (mil), irrigation
rights, piles of manure, and unspecified belongings (matd'). The
commonplacenatureof these propertiesand theirrelatively small size
and value (as compared to the assets mentioned in the Granadan
documents), suggest that we are dealing with possessions that have
accumulated over the course of generations among rural and urban
women, some of modestmeans.
2) The propertymentionedin our sources is propertyin transition,
moving vertically and horizontally,with intergenerationaland lateral
transfers following blood lines and affinal links. The movement of
propertyoccurs because women's ownershipresults from and contri-
butes to the intergenerationaltransfer of property. The transfer of
propertyis not exclusive to women nor is transferthe only means by
which women gain access to property. Acquisition of property by
women (and men) occurs not only through gifts, inheritance, and
dower, but also through sale and labor. The importanceof property
acquisition through intergenerationaltransfer indicates that women
were an importantcomponent of the economic sector and that they
played a significant economic role by keeping family property-e.g.,

houses, irrigationrights, and, especially, land- intact, and, more im-

portantly, undivided. It would appear that the majority of women
owned at least some propertyat some pointin theirlife.
3) The implementationof women's propertyrightswas effected by
mechanisms embeddedin the Islamic legal system and by the latter's
recognized personnel: notaries, witnesses, judges, muftis, and male
jurists who attemptedto link actual socio-economic conditions with
legal rights.
4) Local customs and the social and economic needs of individuals,
families and communitieseither supportedor opposed the implemen-
tation of women's propertyrights. We have seen examplesof attempts
by family members to encroach on women's control of property.
Althoughwomen were somewhatdisadvantagedby the Islamic inheri-
tance rules, a more serious threat to their interestswas posed by the
non-registration of their property acquisitions with notaries. The
evidence presentedhere points to the critical importanceof involving
notariesand witnesses in the registrationof propertyrights.Both legal
provisions and social patternswere used to hinder women's control
over property.The most serious hindrancewas the requirementthat a
woman have a male guardianwho controlledher propertyboth during
her minority and subsequentto her marriage.Anotherhindrancewas
the tendency of fathers to favor sons-in-law over daughters and of
mothersto challenge their sons-in-law. Otherhindranceswere created
by local customs and social conventions, although these might be
"corrected"by the muftis.The power of the jurists seems to have been
particularlysignificant in two circumstances:(a) when a challenge to
ownership occurredduring a child's minority;and (b) when women
were disadvantagedby theirignoranceregardingthe properand timely
handlingof documents.On the whole, the courtsappearto have served
as an arena in which women vigorously pursued their rights and
interests.
Familial politics clearly were an importantobstacle to a woman's
exercising effective control over her property. From the fatwds it
appearsthat families were obsessed with the controlof property,large
or small. Relatives such as a father, mother, daughter,or son were
actively involved in propertydecisions;husbandsandwives frequently
appearas outsiders,as "foreignbodies" attachedto a family who pose
a threatto familial interests.In the many power strugglesthat played
themselves out in our sources, agnatic ties generally took precedence
over affinal links. On the otherhand, amongthe reasonswhy women's

WOMENANDPROPERTY
RIGHTS 255
property rights were implemented by the jurists, demography played an

important role. Low birthrates meant that the number of children, in
general, and males, in particular, and the absence or early death of
sons, made it imperative for the Muslim family to regard women as a
vital link in the intergenerational transmission of property."14
My finding that women's property rights in the Maliki West were
generally upheld despite the existence of certain legal constraints
corroborates the findings of scholars who have studied women in the
Ottoman Empire during later periods. The observations of Jennings,
who used court documents in his study of Ottoman Kayseri women in
the seventeenth century, deserve to be cited in this context, bearing in
mind that he was dealing with Hanafi courts:
The inviolabilityof women's propertyholdingswas consistentlyupheld
by the Kayseri court.No husband,father,nor otherrelative could sell,
rentor make use of any bit of a woman's propertywithouther consent.
Any propertya daughtermight inheritwas exclusively hers to use, to
cultivate, or to rent as she saw fit, and all the revenues accruedto her.
A wife's property-whether acquiredbefore marriageor afterwards-
was exclusively hers to manage, and any revenues it brought were
entirelyhers by law.115
Similarly, Gerber, who studied women's economic activity in
seventeenth-century Bursa, found evidence relating to women's active
participation in economic life and their representation in the court cases,
evidence that, he argues, calls into question the "extremely depressed
position of women in pre-twentieth century.""16
The similarity of our findings points to the continuity and stability of
Muslim societies with regard to women's property rights. It remains,
however, to interpret these findings and to answer several questions:
Did the fact that women could own property and exercise effective
control over it have any impact on their social status, or were they
merely a tool in the intergenerational transfer of property? Does this
conclusion have any bearing on the debate over the status of Muslim
women in the period between the tenth and fifteenth centuries? Is there
any evidence to suggest that women used property ownership to im-
prove their status within the family? Does the fact that Muslim women
were able to exercise property rights call into question the image of the
114 On demographyand the medieval Islamic economy, see Shatzmiller,

Labour,63ff.
115 Jennings,"Womenin Early 17th-Century
OttomanJudicialRecords,"65-
66.
116 Gerber."SocialandEconomic."231.

256 MAYASHATZMILLER
pre-moder Muslim family as being patriarchal?These are large and

importantquestions,the answersto which dependon the interpretation
of ourevidence,admittedlyincomplete.
In seeking to explain how it was that the position of women in a
"patriarchalsociety" was "not so debased,"Gerberrejected Jennings
earlierexplainationthat the phenomenonshouldbe viewed in the con-
text of a "more liberal Turkishattitudeto women, as opposed to the
more depressingIslamic one."117Instead, Gerberproposedtwo cross-
cutting explanations(1) "Women'sinvolvementin the society and the
economy was made possible for them mainly by the fact that the
Islamic inheritancelaw was fully effective concerningthem";and (2)
"the law enabling men to freely divorce their wives was enough to
ensurethe supremacyof males."118
In my view, some of the details containedin thefatwas suggest that
the implementationof women's rights had an impacton theirrelation-
ships with membersof their families and were translatedinto actions
bearing on daily family routine.I have shown that a wife's neglect of
her propertyand refusalto cooperatecould serve as a source of anxiety
to her husband,to the point thathe turnedto a mufti in Fez (seefatwa
21). I have yet to find the mechanismof divorce used as an instrument
of blackmail for achieving victory in a dispute over property.Women
who owned propertyrepresentedan economic potential, which, if a
husband and wife cooperated,might benefit the family unit. Muslim
women no doubtused this economic potentialto improvetheirstanding
within the family with regard to fathers, husbands, and sons, on the
one hand, and mothersand daughters,on the other.The propertyrights
accordedto women by Islamic law, and their implementationin prac-
tice, helped to create a family environmentin which Muslim women
mightbe fearedandrespectedandmighthave theirneeds accomodated.
In thatregard,theirsituationwas little differentfrom that of women in
moder families in which power struggles frequently are related to
property ownership. I assume that if a Muslim woman living in al-
Andalus or the Maghribin the eleventh centuryor the fourteenthwas
aware of her propertyrights, she would use them to exercise economic
power in daily family interaction, whether in her capacity as a
daughter,mother,sisteror, especially,wife.
117 Ibid., 240 ff. For an

attemptto blameHinduinfluencesfor the customof
the brideand her parentspayingthe dowryto the groom,see BazmeeAnsari,"Is
DowryObligatory?" Hamdard Islamicus,1 (1978),78-89.
l18 Gerber,"SocialandEconomic,"231.

WOMENANDPROPERTY
RIGHTS 257
Thefatwds demonstrate that some women were in fact aware of

their rights. By gifting or endowing properties to family members,
women had the ability to place those members in a position of
dependency. The power to make or withhold a gift may have given
women a leveraged position within the family. I expect that the active
participation of women in economic life will better explain and detail
the social significance of women's property rights. The extent to which
women were able to use their rights to generate economic gain for
themselves and to create wealth is another question that deserves
attention.119 In theory, it should have been possible for women to
become active players in economic life and to increase investment and
profits, although their acquisition of property ownership did not
automatically grant them access to markets.120
In propertied families in which women's property rights were recog-
nized and implemented and in which women were entitled to retain their
earnings, male domination was never complete. This conclusion points
to the need for a reconsideration of the cultural context of the Muslim
family. If it is true that males remained dominant within the Muslim
family, notwithstanding the implementation of women's property
rights, then it will be necessary to account for and explain the social,
economic, and cultural forces that neutralized the effects and conse-
quences of the power that might have been exercised by women on the
strength of their implemented propertyrights.
119 In his studyof Aleppoin the seventeenthandeighteenthcenturies,Masters

concludesthatwhilewomenhadtherightto own propertyandenterinto contracts,
social customslimitedtheiropportunitiesfor creatingwealth.Womenwere found
only in the lowestmanualtradesin the textileindustryandhad only limitedsocial
mobility;thus,they couldacquirewealthonly throughinheritance,donations,and
sales. Only a small numberof Aleppenwomen engaged in monylendingand
investedin realestatetransactions,
the majoreconomicactivitiesof the period.See
Bruce Masters,The Originsof WesternEconomicDominance,175-83. For the
periodbetweenthe tenthand fifteenthcenturies,comparePowers,"The Maliki
FamilyEndowment," 402, wherenewdirectionsforresearcharesuggested.
120 The questionof whetherand to what degreewomen in the periodunder
investigationusedtheirpropertyin commercialor financialtransactionsin orderto
generateincomefor themselvesawaitsfurtherinvestigation. Foran examinationof
a limitednumberoffatwas dealingwithfemalewage-earningoccupations,see my
"WomenandWageLabourin the MedievalIslamicWest:LegalIssuesandSocial
Context,"to appearin the proceedingsof a workshopon Late-MedievalFamily
Law 1250-1500,The Universityof BritishColumbia,Vancouver,12-14November,
1992.


Women and Property Rights in Al Andalus PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Women and Property Rights in Al Andalus PDF

Uploaded by

Copyright:

Available Formats

Women and Property Rights in Al-Andalus and the Maghrib: Social Patterns and Legal

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

THE RIGHTto own property is a fundamental aspect of any economy.

? E.J. Brill, Leiden, 1995 Islamic Law and Society 2,3

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

rights, however, are a key indicatornot only of economic change, but

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

The study of Muslim women's propertyrights is idiosyncratic,for

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

only from her agnatic relatives. A woman remainedunder the guar-

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

sale and hire),judicial practices,and attitudesto women. Such a study

18 Due to the paucityof researchon this issue, the ideological debate on

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

information relating to demography, family structure, marriage con-

23 Huda Lutfi, A Study of Six FourteenthCenturyIqrdrs from al-Quds

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

Fatwds, however, are not transparenttexts. The primarychallenge

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

women's ownership of propertyreceived judicial validation and the

(1) Ibn al-Makwi (alternatively,al-Mikwi, d. Cordoba,401/1010),

32 Mi'yar, vol. 9, 123.

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

(3) Someone asked the Granadanmuftf, Abu Sa'id Farajb. Lubb

Like the otherlaw schools, the Malikis allow an individualto make

33 Ibid. See also, Lucie Bolens, "Les parfumset la beaut6en Andalousie

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

property by the donor is regarded as signalling a valid taking of

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

dukhdl).41 There is a disagreement over how long this period of inter-

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

mother.Infatwd (3), the minor daughter'sentitlementto the gift was

Daughters versusFathers and Husbands

45 Schacht, Introduction, 126. On problems associated with endowments for

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

(4) A question submitted to Ibn Lubaba (d. Cordoba 314/926)

(5) A question addressedto Abu Ishaq Ibr.him al-Tunisi mentions

When a fathergives a trousseauto his daughter,her husbandhas no

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

intentionknown. If she is a minorunderinterdiction,she is considered

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

husband,with the daughter/wifewho is subjectto guardianshipbeing

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

moved from one instanceof dependencyto another.Marriageby itself

Daughters versusMothersand Husbands

(6) A question addressed to Ibn 'Attab (d. Cordoba 580/1184)

(7) Ibn al-Sarraj (alternatively, al-Siraj), a fourteenth-century

55 Mi'ycr, vol. 9, 127-28.

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

The precedingcircumstancesare similar to those of a case broughtto

(8) A man gave his wife as her dower one-half of an orchard,in

Property disputes involving mothers and daughters sometimes

58 On this form of divorce, see Schacht,Introduction, 164.

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

(9) The Granadanmufti, Ibn Lubb, was asked about a husband

A second case in which a husbandrepresentedhis wife in a division of

(10) An anonymous fatwd mentions a husband who received a

This content downloaded from 144.37.1.110 on Sun, 2 Mar 2014 19:22:42 PM

the property. Subsequently, the property became the subject of