Women and Property Rights in Al-Andalus

Women and Property Rights in Al-Andalus and the Maghrib: Social Patterns and LegalDiscourseAuthor(s): Maya ShatzmillerSource: Islamic Law and Society, Vol. 2, No. 3, Marriage, Divorce and Succession in the MuslimFamily (1995), pp. 219-257Published by: BRILLStable URL: http://www.jstor.org/stable/3399469 .Accessed: 02/03/2014 19:22

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WOMEN AND PROPERTY RIGHTS IN AL-ANDALUS AND THE MAGHRIB:

SOCIAL PAT'ERNS AND LEGAL DISCOURSE*

MAYA SHATZMILLER

(University of Western Ontario)

Abstract This essay focuses on the implementation of women's property rights in al-Andalus and the Maghrib in 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 acquired property at 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 property during adulthood. The implementation of women's shar'l property rights by qadis and muftis had important consequences for women's relationships with their families, especially their husbands. That male domination was never complete in propertied families calls into question the characterization of the Muslim family as "patriarchal" and points to the need for a new social, cultural, and economic explanation of the nature of the Muslim family.

Investigative Framework

THE RIGHT to 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 property rights 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, particularly my 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 property rights in Islamic law and society fit into this theoretical model deserves attention.

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MAYA SHATZMILLER

rights, however, are a key indicator not 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, notarial 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 historiographical problems connected with women's history, see Connecting Spheres: Women in the Western World 1500 to the Present, ed. M. J. Boxer & J. H. Quataert (New York: Oxford University Press, 1987), 3-17. 3 See for instance Jack Goody, "Inheritance, propery and women: some comparative consideration," in J. Good (ed.), Family and inheritance (Cambridge, Cambridge University Press, 1976), 10-37. 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: Women and Work in 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-Century Ottoman 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 Western Economic Dominance in the Middle East: Mercantilism and the Islamic Economy in 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 prompted to 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 participation in the Economic Life of Later Medieval Islam: Occupations and Mentalities," Arabica, 35 (1988), 36-58. The findings of this research appear in my study, Labour in the Medieval Islamic World (Leiden: E. J. Brill, 1994), 347ff.

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The study of Muslim women's property rights is idiosyncratic, for two reasons. First, whereas the Qur'an mentions that men are superior to women in certain respects (Q. 11:228), both the Qur'in and the hadith fully acknowledge that Muslim women are entitled to own and exercise control over property without interference from males.7 No prescription in these two fundamental sources imposes restrictions on 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 their perception influence the judgments of qadis in cases dealing with women's property rights?8

The second idiosyncrasy relates to the position of Muslim women as compared to that of women in other societies, ancient and modern.9 In ancient Athens, a woman owned her dower and any other property that she had inherited, but other males (e.g., her father, brother, uncle, husband, son, or son-in-law) were authorized to administer her property on her behalf and to represent her in legal procceedings, ostensibley to safeguard her interests.10 In Roman law, a woman could inherit, but

7 Western scholars regard women's property rights as an anomoly that is contrary to the spirit of the law. See, for example, Joseph Schacht, An Introduction to Islamic Law (Oxford: The Clarendon Press, 1964), 126: "The legal position of women is not unfavorable. The woman is, it is true, considered inferior to the man ... But as regards the law of property and obligations, the woman is the equal of the man; the matrimonial regime is even more favorable to her in many respects." On women's status, see Roger Arnaldez, "Status juridique et sociologique de la femme en Islam," Cahier de Civilisation Medievale, 20 (1977), 131-43; El2, s.v., mar'a (N. Tomiche). There is a need for a comprehensive study of the provisions of the Qur'an and the hadlth and the different schools of law regarding women's property rights. Cf. Isabel Fierro, "La mujer y el trabajo en el Cordn y el hadiz," La mujer en al-Andalus, reflejos hist6ricos de su actividad y catgorias sociales, ed. M. J. Viguera (Seville: Editoriales Andaluzas Unidas, 1989), 35-51. 8 Jules Roussier, Professor of Islamic Law at the law faculty of Algiers University, who wrote on Maliki legal practice, explained this paradox as follows: The Qur'an encourages the Muslim woman to marry. So long as she is married, she does not need property because her husband is supposed to provide for her. Yet the Qur'an accorded inheritance rights to women because it was necessary to address the property needs of unmarried women, whether divorced or widowed. In order to encourage women to re-marry, their inheritance rights were limited. J. Roussier, "La femme dans la societ6 islamique, droit malikite maghribin," Receuils de la societe Jean Bodin, 11 (1959), 225. The cultural and ideological significance of this issue deserves a full investigation. I intend to deal with it in a comparative manner in a study of women and property in Muslim and Renaissance societies. 9 See, for example, David M. Schaps, Economic Rights of Women in Ancient Greece (Edinburgh: Edinburgh University Press, 1979). 10 Raphael Sealey, Women and Law in Classical Greece (Chapel Hill: University of North Carolina Press, 1990), 48. The inferior legal status of Athenian women was justified on philosophical grounds. According to Aristotle, women were like children. and. therefore. were not persons in the eyes of the law.

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only from her agnatic relatives. A woman remained under the guardianship of her fathers or male relatives after marriage; alternatively she might choose to be transferred to her husband's guardianship. A woman could not perform any transaction without the involvement of a tutor. I Her freedom consisted in her ability to approach the senators to appoint a tutor or to request a different tutor.12 Although in later Roman times, the role of guardian became a formality, his consent was still needed to validate a contract. In the Germanic law of the early Middle Ages, women could not take legal action, appear independently before a court, or manage their own wealth; and they were at a disadvantage with regard to men in the law of succession.13 And in fourteenth-century Florence, the ability of women to engage in property transactions was constrained by male legal guardianship and by the requirement of parental consent.14

There are, of course, exceptions to this pattern. One is the position of Jewish women in the first century A.D. Papyri discovered in the Judean desert indicate that Jewish women had property rights greater than those of their Greek counterparts.5s A woman named Babatha, for example, owned four prosperous date orchards and lent her husband a sum of money to provide a dower for his daughter by his first marriage.16 Also exceptional are the Jewish women of eleventh- and twelfth-century Cairo.17

The connection between Muslim women's property rights and the institutions of marriage and the family is a key element of a comprehensive social history that has yet to be written. The study of women's property rights requires an examination of family law (marriage, divorce, inheritance, and guardianship), property law (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 Kokhba period in the cave of letters, ed. N. Lewis, Y. Yadin and J. Greenfield (Jerusalem: Israel Exploration Society, 1989). I thank Prof. Timothy Banes for drawing my attention to this collection.

16 Ibid., 24 (documents 16-18, 25). Babatha possessed assets in excess of 400 denarii. She lent her husband 300 denarii toward the 500 denarii dowry of his daughter by his first marriage. After her husband's death, when his estate was insufficient to pay either the loan or her own dowry, Babatha took possession (probably de jure since a widow was entitled to the return of her dowry) of her husband's date orchards.

17 S. D. Goitein, A Mediterranean Society. Vol. III The Family (Berkeley and Los Angeles: University of California Press, 1978).

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sale and hire), judicial practices, and attitudes to women. Such a study may shed important light on the relationship between Islam and socio- economic development in early modem and modem times, especially with respect to the status of women.18 These issues, which are of considerable interest to modem historians, form a central item on the national agenda of Muslim societies,19 and, for this reason, care must be taken that contemporary observations regarding the status of Mus- lim women in modem times do not affect the historian's assessment of the status of women in pre-modem times.2

The historical investigation of the status of Muslim women in the period between the tenth and the fifteenth centuries is still in its early stages (the Ottoman period is better known, but one must avoid the tendency to project conclusions backwards).21 At this point in time, one of the most important tasks is to identify and locate adequate sources. Of course, there are numerous historical chronicles and literary sources, but these may be unrepresentative and misleading and therefore should be used in conjunction with other sources.22 Among the material currently available, legal sources deserve greater attention than they have received. Recent studies based on legal sources have demonstrated their potential for the history of Islamic marriage and family. Lutfi's study of court documents and Powers's study of fatwas indicate that

18 Due to the paucity of research on this issue, the ideological debate on whether the male monopoly of means of production resulted in the suppression of women cannot be entertained at this stage. See the discussion in Tucker, Women in Nineteenth-Century Egypt, 6-7. 19 Elizabeth H. White, "Legal Reform as an Indicator of Women's Status in Muslim Nations"' in Women in the Muslim World, ed. L. Beck & N. Keddie (Cambridge, Mass.: Harvard University Press, 1978), 52-58. 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 landholding patterns in 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'organisation du 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.

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information relating to demography, family structure, marriage contracts, 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 Fourteenth Century Iqrdrs from al-Quds Relating to Muslim Women," Journal of the Economic and Social History of the Orient, 26(1983), 246-94; idem, Al-Quds al-Mamlukiyya: A History of Mamluk Jerusalem Based on the Haram Documents. Islamkundliche Untersuchungen, no. 113, (Berlin: Klaus Schwartz Verlag, 1985); David S. Powers, " Fatwds as Sources for Legal and Social History," Al-Qantara, 11 (1990), 295-341; idem, "The Maliki Family Endowment: Legal Norms and Social Practices," International Journal of Middle East Studies, 25 (1993), 379-406 (on women and waqf, see esp. 382-86, 395, 397). An annotated bibliography of aspects of the history of the Andalusian woman can be found in La mujer en al-Andalus, 17-34. 24 On Andalusian fatwds and their historical value, see Jos6 L6pez-Ortiz, "Fatwas Granadinas de los siglos XIV y XV," Al-Andalus, 6 (1941), 73-84. 25 Wael b. Hallaq, "From Fatwds to Furu': Growth and Change in Islamic Substantive Law," Islamic Law and Society, 1 (1994), 29-65. 26 See El, s.v. "Malikiyya" (N. Cottart); Emile Tyan, Histoire de l'organisation 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 ressortir le 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, "Consid6rations sur l'utilisation des ouvrages de Droit musulman par l'historien," Atti del III Congresso di Studi Arabi e Islamici. Ravello, 1966 (Naples: Instituto Universitario Orientale, 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 Maria J. 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

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Fatwds, however, are not transparent texts. The primary challenge of using them for the purpose of historical investigation lies in the inability of historians to situate their contents within the larger framework of social, economic, and political history. These texts baffle us because they lack the historical qualifiers to which we are accustomed (e.g., precise date of thefatwd and the location, size and identity of property mentioned therein) and because they take us several levels below the known surface of Muslim society and therefore are difficult to situate in their social and economic context. In place of the "routine" historical heroes (e.g., grandees, 'ulama', rulers and military comman- ders), these texts refer to the private and mundane affairs of "ordinary" men and women who did little or nothing to distinguish themselves in the eyes of contemporaries. Although fatwds are historical texts, the historical information contained in them is largely microhistorical and is not easily integrated into the larger historical framework constructed on the basis of chronicles, literary works, and hisba manuals. Although queries sent to the muftis and the latter's written responses sometimes involved known historical personalities, more often than not the muftis responded to questions from members of the community-at-large and to local qadis.

The present study is based primarily on 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. Although the exploitation of thesefatwas for historical purposes began in the early years of this century,28 the sheer magnitude of the collection has frustrated scholarly efforts to provide a general and comprehensive view of underlying legal, 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 m6di6vales extraits du Mi'ytdr d'al-Wansharishi," Studia Islamica, 33 (1970), 157-67; idem, "Contribution i 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 hydrauliques 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, "Culture et industrie du lin en Al-Andalus au moyen age (VIIIe-XVe s.)," Studia Islamica, 54 (1991), 143-65; idem, "Moulins d'Occident musulman au moyen age (IXe au XVe siecles): Al-Andalus," Al-Qantara, 12 (1991), 59-118; idem, "Agriculture et irrigation dans 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-Century North Africa," Journal of the American Oriental Society, 110 (1990Q. 229-54.

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been further complicated by the fact that until 1982, the Mi'yar was available only in manuscript or lithograph.29 The publication of the text in 1982 by the Moroccan Ministry of Culture and Religious Affairs (twelve volumes plus a volume of indices) has made its contents more accessible and easier to use.30

The fatwds studied here were selected from chapters dealing with marriage (nikdh), exchanges and sales (al-mu'dwaddt wa'l-buyi'), endowments (ahbas), hire, rent and artisans (ijdra kird' wa'l-sunnd', nawclzil al-ijcartdt wa'l-akriya wa'l-sunnd'), and gifts, charitable dona- tions, and manumission (al-hibct wa'l-sadaqdt wa'l-'itq). My selection of thesefatwas has been guided by three criteria: first, eachfatwd refers to a distinct mechanism through which a woman becomes a property owner; second, each deals with a different aspect of familial dynamics; third, each fatwt studied here was issued in either eleventh-century Cordoba or Tunisia or fourteenth-century Granada or Fez. In support of the evidence found in thefatwds, whenever possible, I cite additional evidence from two contemporary Maliki notarial formularies and from an archival cachet of property deeds registered by fifteenth-century Granadan notaries. Approximately half of the fatwds in the above- mentioned sections of the Mi'ydr and approximately 95 percent of the Granadan documents deal with problems relating to women. However, this is not a quantitative study and any conclusions that I advance should be regarded as provisional and tentative.

The mustaftis (a technical term for the person who requests an opinion) and the muftis generally begin by noting that the case relates to a woman. Because the legal status of women differs from that of men, fatwas are an excellent source of information about the treatment of women.31 Thefatwds demonstrate how the jurists attempted to establish the legal circumstances in which a property was acquired or handled by a woman. They also shed light on when, how often, and to what extent

29 The use of Idris, "Le mariage," is rendered difficult by the fact that the author refers to the fatwas according to a numbering system that he was unable to explain before he 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.

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women's ownership of property received judicial validation and the parameters of her freedom of action in controlling it. Two other parameters are important in connection with the establishment of ownership and control of property: the different family affiliations and the position of each person within the family. By juxtaposing legal discourse and family relationships, I attempt to identify the typical circumstances in which women's property rights were implemented and to provide a model of familial economic behavior.

Minor Daughters and Their Fathers After inheritance, hiba and sadaqa are the most important mechanisms for transferring property from one member of 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 summoned witnesses (ashhada) to attest that (a) he had given all his domestic possessions, including both jewelry and clothes, as a gift (hiba) to his two minor daughters; (b) that one chest (tdbut) containing clothes was to go in its entirety to one daughter, that another chest was to go to another daughter, and that he kept for himself only the shirt on his back (kiswat zahrihi); and (3) that he was giving a silo (matmura) to one daughter 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 quantities of the different items, except to see that the silo was full of food, that the house had food in it for the second daughter, and that the daughters were wearing jewellery prior to their father's death. The mustaftl asked if the gift was lawful. In a brief response, Ibn al- Makwi said that everything belonged to the daughters.32

(2) Ibn al-Makwi also was asked about a father who had acquired (iktasaba) jewellery and cloths on behalf of his virgin daughter (bikr) who was under his guardianship; the items were placed in a locked chest under the supervision of the girl's mother, his wife. After his death, the man's heirs claimed a share of the jewellery and the clothes. Ibn al-Makwi responded that if it was widely known

32 Mi'yar, vol. 9, 123.

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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 Granadan muftf, Abu Sa'id Faraj b. Lubb al-Shatibi (d. 1380), about a woman (mar'a), that is, about a minor girl who was under the guardianship of her father (ft wilayat abtlh). The girl received some property as a gift from her father and, with his consent, designated the property as an endowment. Ibn Lubb responded that the creation of the endowment was invalid (yufsakh al- tahbfs) because a father cannot alienate property belonging to his minor daughter without 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 invalid because he no longer owned the property; similarly, if the girl "put her hand" (bdsharat) directly on the property, acting as if she were the founder, her action is invalid because she was a minor under interdiction (ma.hjra).35 Like the other law schools, the Malikis allow an individual to make

a gift to members of his family in an attempt to circumvent the inheritance rules. Like the Hanafis but unlike the other schools, the Malikis require the physicial taking of possession (hiycza) of the gifted property in order for ownership to transfer.36 Once a donor makes an offer to give (rjab) and the donee accepts it (qabul), the right of acquisition is complete and the donee may take possession even without the permission of the donor. The mode of taking possession varies in accordance with the nature of the gift. Once the means of taking possession has been made available, as, for example, by handing over keys to a box, the taking of possession is valid. The mere abandonment of the

33 Ibid. See also, Lucie Bolens, "Les parfums et la beaut6 en Andalousie m6dievale (XIe-XIIIe siecles)," Les soins de beaute. Actes du IIIe Colloque Inter- national, Grasse 1985 (Nice, 1985), 145-69. 34 Schacht, Introduction, 158: "the charitable gift (sadaqa) is treated as a donation, except that it cannot be revoked." Ibn 'Arafa held that ownership remains with the donor. see Powers, "The Maliki Family Waqf," 382. 35 Mi'yr, vol. 7, 274. 36 On the Hanafis, see al-Sarakhsi, Kitdb al-Mabsut (Cairo, 1324H.; repr. Beirut: Dar al-Ma'rifa, 1398H.), vol. XII, p. 48: thumma'l-milk ld yathbutu fi'l- hibat bi'l-'aqd qabla'l-qabd 'indand. On the same page, al-Sarakhsi mentions a point of difference between the Hanafis and Malikis on this point which seems to go in a slightly different direction.

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property by the donor is regarded as signalling a valid taking of possession.37 Although the death of the donor creates an obstacle for taking possession (as does bankruptcy, madness, a death-causing sick- ness, or disposition of the gift), the Malikis recognize the presence of witnesses (shuhad) at the declaration of the gift as equivalent to an effective taking of possession. The purpose of this act is to alert the general public to a change in the status of the property.

Interdiction (hajr) was a legal mechanism that enabled a responsible adult to exercise control of property owned by three categories of individuals whom the law considered unfit: minors, the mentally incapacitated, and women, either after puberty and before 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.38 An interdicted child cannot control his or her property. With males, the condition or status automatically ceases at a certain age. With females, the condition does not necessarily end at a certain age or with marriage. To emerge from the condition, males and females must go through a 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 initiated by the father, a daughter is dependent on his good will in order to liberate herself from his guardianship.39 Khalil concedes that a father should remove the interdiction of his virgin and mature daughter before marriage, but recommends doing it after marriage. A father also may renew the interdiction of his daughter.40 Ibn Juzayy states that if a woman has a father, she remains under his interdiction upon attaining physical maturity; even if she marries and goes to live with her husband, she remains under her father's interdiction for "a period of time after consummation of the marriage" (wa-tabqd muddatan ba'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. The document is drawn up for a son; no document for a daughter is provided. 40 Khalil. Abrede. vol. 3. 61-62.

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dukhdl).41 There is a disagreement over how long this period of interdiction 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 return for a consideration (bi-'iwad). If she makes her husband the beneficiary 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 complete until hiydza has taken place.43 In certain cases, it is possible to assign a mandate to a third pary to enable him or her to take possession 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 document 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 daughter until she comes of age (ild tablugh al-bint al-mawhub lahd).44

The opinion of Ibn al-Makwi infatwas (1) and (2) was, therefore, strictly in accordance with the prevailing legal norm. The donation was valid because it fulfilled all the requirements. It had been performed in the presence of witnessess for the sake of publicity: In fatwd (1) the donor/father had divested himself of everything, whereupon the 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 Luis Seco de Lucena, Wathd'iq 'arabiyya gharndtiyya. Documentos Aribigo- Granadinos, (Madrid, 1961), 145.

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mother. Infatwd (3), the minor daughter's entitlement to the gift was threatened by the fact that she was under interdiction and not in full control of her property. According to the law, a minor, even though under interdiction, can take possession in spite of his/her youth, without being authorised by his/her guardian, since this is an act that benefits him/her. Although a minor is restricted in her capacity to dispose, being "interdicted" (fi hajr), an exception can be made by the father, but only for advantageous transactions (the creation of an endowment apparently was not considered advantageous). The earlier gift prevailed over the later endowment.45

To sum up: Although a woman might receive property as a young girl, she generally did not take possession of the property until many years later, at which time complications, challenges, and litigations might arise. Heirs might press claims or the donor/guardian might decide to revoke the gift because of changed circumstances. Infatwas (1) and (2), the heirs claimed that the gift was invalid because of incertitude relating to it and because the donor died before transferring possession. Both Ibn Makwi and Ibn Lubb, 300 years apart, upheld the ownership rights of minor daughters who had received gifts from their fathers and protected them against members of their family. In part, these decisions were based on the muftis' understanding of the intention of the two donors. Of critical importance in this regard is the requirement of publically acknowledging one's intention to 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 property has not taken place. The jurists had no difficulty upholding the validity of such transactions because they assumed that the purpose of the gift was to place property in the hands of children, a common and accepted practice. Over time, the jurists' willingness to uphold such transactions may have contributed to the strengthening and perpetua- tion of this particular structure of property devolution and to a greater measure of economic stability and familial harmony.

Daughters versus Fathers and Husbands A man's understanding of custom might result in his finding that he was acting contrary to the law when he attempted to take control of his daughter's property.

45 Schacht, Introduction, 126. On problems associated with endowments for the benefit of minors. see Powers. "The Maliki Family Waqf," 396.

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(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 Lubaba described the conditions in which such an action is allowed. In this instance, since the woman's husband already had benefitted from his wife's property for more than a year, her father required a compelling reason to regain control of it. This was acceptable only if he took possession for the benefit of his daughter and if he was not acting for the purpose of injuring the husband (idrdr bi'l-zawj). If, however, he took possession because of some enmity between himself and his son in-law, that action was not permissible, except if the latter was unreliable (ghayr ma'mun 'alayhi), e.g., unscrupulous, a sinner, or a spendthrift (al-khalr al-fdsiq al-mitldf). In determining whether or not a father may serve as guardian of a married daughter, the notion of intent is again critical.46

(5) A question addressed to Abu Ishaq Ibr.him al-Tunisi mentions a father, who, following established Gafsan custom, designated his minor daughter's wealth (mal ibnatihi) as a life-gift ('umrd) for the benefit of her husband. The people of Gafsa reportedly practiced this custom in order to make better use of individual property ('ald wajh al-irfdq) - irrespective of the fact that the property belonged to the wife and was not her father's to dispose of, even if ostensibly for her benefit The custom apparently caused some confusion, especially in cases of divorce. In his response, al-Tunisi stated categorically that the father's use of his daughter's property in this manner was not permissible, thereby rejecting the custom. In support of his position, he quoted al-Mazari (d. 536/1141), a Qayrawani jurist who mentioned that this custom was common in the Ifriqiyan towns of Zawila and al-Mahdiyya, where, after "consulting" with his daughter, a father would use her property to purchase a house in which husband and wife would live together.47

When a father gives a trousseau to his daughter, her husband has no right to enjoy it and no power to intervene in her decisions regarding it. 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.

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intention known. If she is a minor under interdiction, she is considered to be in possession of the property from the moment that her father purchases it on her behalf. Although a woman's trousseau might be purchased and given to her by her father, the evidence of the notarial models suggests that it was frequently purchased by the father with the proceeds of the prompt dower (naqd) paid by the husband. A future husband could in fact designate part of the dower for that purpose. The Malikis also authorize a father to sell real estate given to the bride by her future husband in order to make essential puchases.48 The Malikis permit the father to purchase the trousseau with money delivered by the groom; if the dower consists of real estate or a slave, the father may sell the property in order to purchase the trousseau.49 He may use the dower only to purchase clothes and house utensils for her and is obligated to deliver these items to her in her new home.

The notarial manual of the Toledan Ibn Mughith contains a model document in which the father specifies the items he purchased for his daughter with the money given to him by the groom and the exact date on which the items were delivered to his daughter's new home.50 In a statement of the law that follows the model, Ibn Mughith mentions two circumstances in which it is important to have such a document: when a woman claims, subsequent to her marriage, that her father took possession 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 contain formulas that allude to a practice similar to the one mentioned for Ifriqiya legitimizing a father's control of his daughter's property. 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).S1 In the document, a father testifies in the presence of witnesses that when it became evident to him that his daughter's husband was lacking in means and in need, he remitted (wa.da'a) to the latter a certain amount of the delayed portion of her dower because he was worried about his daughter (wa'l-nazar fi dhdlika li-ibnatihi). In the same document, the son-in-law acknowledges having accepted this re- mittence from him. In his supplementaryfiqh explanation, Ibn Mughith cautions the father not to concede the entire dower because, in the event

48 Khalil, Abregd, vol. 2, 55. 49 Ibid. 50 Ibn Mughith, al-Muqni', 76-78. 51 Ibid.. 78-9.

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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 indicates 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 formula for 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 donation are (a) donation for life ('umrd); Islamic law treats it as an unconditional donation; (b) donation with the stipulation that the object becomes the property of the surviving party (ruqba); it is invalid on account of uncertainty, but some authorities treat it in the same way 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.

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husband, with the daughter/wife who is subject to guardianship being the weakest element. The prospect of property changing hands as a result of marriage and the right of the father to take possession and dispose of his daughter's dower were causes for anxiety and misunder- standing that might prompt a father to seek to regain control of the property acquired by his daughter upon her marriage.

The preceding evidence suggests that a young bride exercised only minimal control over the property that she acquired at the time of her marriage. Although she legally acquired the sadcq-money, clothes, utensils or a house-her father frequently exercised effective control of the property, with the assistance of the jurists, ostensibly for her benefit. The fatwCs reveal that a married woman was sometimes unable to exercise effective control over dower property despite the fact that the law regarded the dower as belonging to her. The notarial models which regulate and register the process of the transfer of property are designed to insure that fathers do not abuse their power. These legal safeguards were not always successful.

Although the 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, should be measured against its underlying intention, and that the father should be given the benefit of the doubt. By specifying the daughter's interest as the criterion for approving such 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 preferable that the property be controlled by a father or a husband than by the woman herself, even though she was old enough to be married. Infatwd (5), the two muftis, first al-Mazari, and then al-Tinisi, maintained that local custom encroached upon the shar'i rule that the dower is the exclusive property of the wife. It is possible that in the Maghrib, jurists did not condone the practice of the father using the dower to purchase a house as their counterparts did in al-Andalus.

On the surface, fatwd (5) suggests that it was the wife who requested the opinion and that women might go to court to claim their property rights. By issuing suchfatwds, jurists ostensibly were defend- ing women against their male relatives. But no matter how reassuring the muftis' words might be, the alliance of a father and a husband no doubt proved difficult to challenge, even for the most determined daughter/bride. Both cases illustrate how a woman might lose her right to control her property through the dictates of custom ('ada) as she

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moved from one instance of dependency to another. Marriage by itself did not necessarily constitute a liberating step with regard to ownership.

Daughters versus Mothers and Husbands

Complications might arise when mothers, themselves vulnerable as females in issues of property, involved themselves in the handling of their daughters' properties, either before or after marriage:

(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 share was to pass to the other. The mufti declared this stipulation illegal and revoked the gift on the ground that it would deprive the legitimate heirs of the first daughter to die of their share of her estate.55 The mufti invalidated the gift on the ground of protecting the rights of the heirs. For the same reason, a married woman, like a married man, can dispose of only one-third of her property.56

(7) Ibn al-Sarraj (alternatively, al-Siraj), a fourteenth-century Granadan muftf, 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 properties and refused to release them, claiming that she was her daughter's guardian (wast). In his answer, Ibn al-Sarraj cast doubt on the mother's motivation. Why had she remained silent about her claim until her daughter's death? And why had she permitted her daughter, who, according to her claim was subject to her guardianship, to sell the property to her husband and collect the money? The mufti advised the authorities to examine for possible fraud both the sale-document and the document appointing the mother as her daughter's guardian. The matter was referred to a second mufti, al-Haffar, who concluded that the mother's actions amounted to depriving her daughter's offspring of their legal inheritance of their mother's estate. He recommended that 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.

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The preceding circumstances are similar to those of a case brought to Qasim al-'Uqbni, a fifteenth-century jurist of Tlemcen:

(8) A man gave his wife as her dower one-half of an orchard, in joint ownership ('ala 'l-ishd'a), and she purchased from 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 orchard in return for her release from the marriage.58 (In a khul' divorce the wife redeems herself from the marriage in return for a consideration; I assume that the husband continued to exercise control of the orchard.) Subsequently, the wife's mother produced a document dated five years prior to the divorce (at which time the garden was in the husband's possession), confirming that her daughter had transferred (sayyarat) the garden to her as payment for a debt. A sale-document provided by the mother mentioned the daughter's acceptance (qabul) of the sale offer, which made the contract complete and the transaction binding, but it did not mention the mother's having taken physical possession of the property.59 Two questions arose: Does the mention of acceptance in the document make the sale valid? Or did the wife deceive her husband by causing him to believe that she was relinquishing the property as compensation for the divorce, when, in fact, she previously had transferred possession of it to her mother? The situation was further complicated as both transactions took place within the seven-year period during which a wife remains under parental interdiction. Allowance of the sale might invalidate the divorce. According to al-'Uqbani, the failure of the wife's mother to produce the document at the time of the divorce nullified her claim, because the physical transfer of possession was never completed and the husband continued to utilize the property. He added that, according to a minority opinion, the terms of a divorce take precedence over an incomplete sale (mddin 'ald kulli hal).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 Muhammad al-

'Uqbani, Un Traite de Hisba, ed. A. Chenoufi (Damascus: Institut fran9ais d'arch6ologie orientale, 1967).

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woman with regard to her property. We have seen that women do not automatically emerge from interdiction (hajr) upon marriage. In the cases examined here, the wife's freedom to sell or gift property required her guardian's approval if she was still subject to interdiction, which normally was the case during the first year of marriage-unless her guardian had liberated her in the presence of witnesses. The fact that the muftis recommend that documents be verified by witnesses points to their reliance on a sophisticated system of notarization.

A property sale between husband and wife registered in Granada during the late fifteenth-century indicates that separation of property between spouses was indeed practiced.61 As in any sale document, the notary identifies the two parties, the property sold, the price paid, the validation of the transaction by taking possession (qabd), and the conferring of complete ownership rights. Another document in the same collection, also from Granada, dated 1495, mentions a gift from a husband to his wife of 220 silver dinars.62 Concern for the welfare of daughters was a common motive in making property decisions. In a last will and testament (wathlqa) from fifteenth-century Granada, a mother provided for her daughters by purchasing wheat, flax, grains, oil, honey, barely and flour for them.63

In spite of the limitations on their control of property, married women appear in great numbers in the legal sources, freely disposing of their property. Fatwds describing gifts from a mother to her daughter or daughters demonstrate how property descended directly from the control of one female to another in the next generation. Whether or not such a gift was intended to circumvent the inheritance rules, it necessarily reduced the size of the estate and therefore might result in legal action. By invalidating the mothers' actions and criticizing them for their failure to secure the appropriate documents and use them at the appropriate moment, the jurists were not necessarily manifesting hos- tility toward mothers, but perhaps merely upholding the legal norm by protecting the daughter's right to obtain her divorce and her children's right to their inheritance. Nonetheless, thefatwds point to an outcome in which women forfeited property to males in a court dominated by males.

61 Seco de Lucena, Watha'iq, 113. 62 Ibid., 94 63 Ibid., 98.

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Wives and Husbands

Wages The law holds that wages are due under certain circumstances, specifically, if the services rendered are absolutely necessary. Whether or not a husband is entitled to wages for services rendered to his wife is another matter:

(9) The Granadan mufti, Ibn Lubb, was asked about a husband who, after representing his wife in the division of an inheritance and securing her share, sought to collect wages (ujra) for his labor. The mufti ruled that no wages were due for normal efforts expended by a husband in pursuit of his wife's interests. However, if the husband invested greater than normal efforts in securing her entitlement, she was liable for the expenses, because he neglected his own financial interests (maslaha) on her behalf. If he undertook this task without notifying her that he might seek some compensation (min duna shay'), then he had committed himself, 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 amount of compensation sought).64

A second case in which a husband represented his wife in a division of inheritance had more far-reaching implications:

(10) An anonymous fatwd mentions a husband who received a mandate from his wife to claim her share of an inheritance.65 The husband claimed and received his wife's share, and later purchased it from her. Subsequently, he initiated a litigation on the ground that the shares had not been properly calculated. After he won the case, his wife approached him requesting a supplement to the share she had received (she may have felt that her husband had cheated her). The jurist who was consulted about this case confirmed the husband's right to demand a second division, but rejected his wife's claim that she was entitled to a supplement. The mufti drew a distinction between the two acts: The wife sold a determined, well- defined property; that sale was complete and terminated her rights in

64 Mi'ydr, vol. 8, 368; on Ibn Lubb and his fatwas, see J. L6pez-Ortiz, "Fatwas Granadinas," 84-85. 65 Amar. Consultations, 13 19091. 264.

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the property. Subsequently, the property became the subject of another legal transaction, which resulted in a second division. (This fatwa also appears in the chapter on sales, where it is specified that a third party-and not the husband-represented the woman).66

The underlying reason for Ibn Lubb's decision is highlighed in a comment made by the contemporary Granadan jurist, Ibn Juzayy, in connection with the case, "If someone performs work for someone else without being directly ordered to do so, or procured for him some benefit, whether money or otherwise, his wages should be paid; [the same holds] if he represents (ndba) someone in a matter in which he has no choice but to hire someone to perform the work or if he has no choice but to spend money."67

The notarial forumularies indicate that a contract of hire must specify the precise nature of the work, its location, the terms of employment, the identity of the contracting parties, and the amount of wages.68

Important conclusions can be drawn from these cases. First, women knew that they were entitled to inherit and made arrangements to acquire their respective shares.69 Second, the fact that a woman received her share through the good offices of her husband may indicate either that she could not be present at the division of the estate due to the presence of other males or that she chose not to be present, preferring to call upon a male representative. The question of whether or not a woman could receive her inheritance without her husband's assistance is important for our understanding of 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 entitled to wages if he incurred expenses or actual loss while acting on behalf of his wife, but that the burden of proof was on him, due to the possibility of a false claim. On the other hand, that the husband demanded payment for representing his wife, that the matter came before a judicial authority, and that the husband consulted a mufti, indicates that payment for such representation was probably not a

66 Ibid., 12 [1908], 477. 67 Ibn Juzayy, Qawanin, 210. 68 See, for instance, Ibn Mughith, al-Muqni', 196-207. 69 The Qur'anic inheritance law which gave women unequivocal rights to inherit from family members has long been celebrated as the major improvement in the status of women under Islam. On the legal and social aspects of women's inheritance law, see David S. Powers, Studies in Qur'an and Hadlth: The Formation of the Islamic Law of Inheritance (Berkeley: University of California Press, 1986).

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common practice. Ibn Lubb's decision not to accede immediately to the husband's request, but to request demonstration of losses on his part, indicates that the husband's representation of his wife was in accordance with the norm, but that his claiming wages was not.

With regard to women and inheritance, the evidence suggests that women received their inheritance shares but probably were not present at the division of the estate. I do not know if it was a common practice for husbands to represent their wives or for male relatives to represent unmarried women, 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 dependent on male relatives for the receipt of their shares but that there was no joint ownership of property between spouses.

Payment of rent for a matrimonial home 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 friction between spouses:

(11) Ibn Lubb issued afatwd in which he dealt with the question of whether a husband who lives together with his wife in her house is under any obligation to pay her rent (kird'), if she asks for it. In his answer, Ibn Lubb said that it was common knowledge (mashhur) that a husband who lives in his wife's house is under no obligation to pay rent (Id shay'a 'alayhi fhi). This is the established judicial practice (wa-bihi jard al-'amal) as manifested in the judgments of 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 jurists of Cordoba justify the established judicial practice on the ground that it results in a benefit for the wife (maslahat al-zawja) and in an improvement of conjugal relations (tahsin al-'ishra). But some jurists, Ibn Lubb continued, have deviated from the established judicial practice, apparently after a qadi living in a town where the established practice was not followed issued a judgment requiring a 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 Lubb concluded is that the husband does not have to pay rent to his wife.70

70 Mi'ydr. vol. 8, 290. Idris. "Le mariage en Occident musulman," 163, cites

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(12) An anonymous fatwd mentions a father who allowed his daughter's husband to live in her house after the marriage without paying rent. When the daughter reached the age of majority, she demanded rent from her husband. The mustafti posed several questions: Was either the father or the husband liable for the rent? Should the husband be allowed to continue to live in the house on the basis of the arrangement with his father-in-law? The mufti responded that the father had acted improperly: No father (or guardian) may give away a minor's funds or do anything with them that is not permitted. Here, the mufti upheld the rights of the minor woman against her father and husband.

This result may be explained on the basis of evidence presented earlier. A father/guardian has wide discretion with regard to 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 market value); and hire out her animals. At the same time, Sunni jurists specify that when a minor girl is liberated from her father's interdiction, she must respect any agreements contracted by him, even if the duration of the contract continues into the period of her independence.7' It was no doubt because the young wife trusted the judicial system that she attempted to nullify her father's arrangement with her husband. Notice the similarity between the propertied wife's attempt to collect rent from her husband in this case and the husband's attempt to collect wages from a propertied wife infatwd (9).

Ibn Lubb undoubtedly was correct about the established judicial practice, which could not have been popular with wives. Both spouses exhibited a detached, unsentimental attitude toward their respective partners. Fatwc (11) gave Ibn Lubb an opportunity to trace the history of a practice and to express his views on marital values. The rule of division of property between husband and wife placed each spouse in a position of choice with regard to any action undertaken by his/her partner on his/her behalf, sometimes leading to suspicion and cheating. As is clear from Ibn Lubb'sfatwd, the jurists considered the 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.

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A wife's donation of property to her husband

According to Maliki legal doctrine, a gift is invalid if its object is returned to the donor. Consider the following two cases in which a wife made a gift to her husband:

(13) In a question addressed to Ibn 'Attab (d. Cordova, 462/1069), a wife gifted (wahabat) her husband irrigation rights to a water scoop (saniya) together with the delayed portion of her dower (kali' saddqiha). The husband used the water to irrigate land belonging to him and used the surplus water to irrigate land belonging to her. The mustafti asked whether the donation was invalidated by the husband's use of the water for the benefit of the donor. Ibn 'Attib responded that the donee's use of the water to irrigate his wife's field does not invalidate the gift, although it was reprehensible for her to benefit from it (yukrahu lahd al-intifa' minhu), adducing, as support for his conclusion, a prophetic hadlth.73

(14) Ibn al-Hajj (d. 550/1155 in Cordoba) was asked about a wife who gifted her husband property in a village, apparently an orchard for which the husband contracted a sharecropping agreement for irrigation and cultivation (musdqdh).74 Although the agreement was corroborated by witnesses (bayyina) as recorded in a document, the witnesses did not include the wife/donor. The husband produced a second document indicating that he had administered and supervised the property. The validity of the donation was challenged on the ground that a donation does not become complete until the donor has given permission to take possession; the woman's failure to serve as a witness to the irrigation contract suggested that she had not done so. Ibn al-Hajj responded that the gift was valid, as confirmed by the two documents.75

Infatwa (13), the object of the wife's gift, irrigation rights, was used to irrigate her field; because the object of the gift was being used for her benefit, a case could be made that the gift had been returned to her and was invalid. Khalil distinguishes a gift between spouses from a general gift.76 Tangible things such as real estate or slaves may be gifted by a

73 Ibid., vol. 9, 125. 74 For examples of musdqdh contracts in al-Andalus, see Ibn al-'Attar, 83-92. 75 Ibid. 76 Khalil, Abrege, vol. 3, 151-52.

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wife to her husband, and the transaction is valid even if the husband does not take possession (qab.d), as required in the case of a general gift.77 Infatwds (13) and (14), the muftts respected the declared inten- tions of the wife/donor and awarded the husband full ownership of the gifted properties, despite doubts that were raised about the legality of the gifts. By allowing a wife's gift to her husband on the ground that it respects her wishes, without asking any questions, the jurists facilitated the control of the wife's property by the husband. This trend is reinforced by the Maliki rule that a wife may not dispose of more than one-third of her property.78 The complex nature of gifts between husbands and wives is compounded by other factors. Although the principle of separation of spousal property was upheld in al-Andalus, some women gave their husbands the right to exploit their property. According to Ibn Juzayy, if a wife gives her husband the right to enjoy the usufruct of her property (imtd), as is the custom (md jarat al-'da) in al-Andalus, it cannot appear as a condition in the marriage contract; the gift is valid only if it is performed voluntarily (tatawwu'an) and subsequent to the validation of the contract.79

The Granadan collection of notarized deeds contains two examples of property gifts from husband to wife. The first document, dated 1485, specifies the names of the couple and the amount of the gift, that is, 220 silver dinars from the new mint and a gold brocade held by a third person.80 The 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 noteworthy that a afaqfh took possession of the property on 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 irrigation rights were basic assets that commonly were transferred from one generation to the next. A commutative contract (mu'dwada) between two brothers in Granada, dated 1485, deals with a quarter of the quota of irrigation water of the Grand Canal (al-sdqiya al-kubrd) below the city, for the night of every fifth day of an eight-day cycle.82 In cases in which one spouse uses the other's property, the arrangement

77 Ibid. 78 See Linant de Bellefonds, Traite, vol. 3, 372. 79 Ibn Juzayy, Qawtnin, 159. 80 Seco de Lucena, Wathd'iq, document no. 51, p. 94. 81 Ibid., document no. 53, p. 96. 82 Ibid., document no. 52, p. 95.

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must be acknowledged by witnesses, as evidenced in a notarized document from Granada, written in 1485, in which a son confirms that he and his late father undertook irrigation work and construction in his mother's orchard.83

At the other end of the "gifting" spectrum, wives gift their property to their husbands, including the deferred portion of their dower.84 In fatwds (13) and (14), wives chose not to retain ownership of 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 property to her husband, including her future security in the event of divorce or widowhood, this seems to have been a common practice. The notarial evidence indicates that social and economic realities might make it necessary for property to be transferred from a husband to a wife as well as from a wife to a husband. The latter type of transfer may be explained by the fact that the property probably was better managed by the husband; if the wife had retained it, she would have had to hire laborers to irrigate the fields. The gifts may also have facilitated the subsequent inheritance of the properties by the women's children.

Claiming the mahr from the husband's heirs The delayed portion of the dower, due upon dissolution of the marriage through either divorce or death of the husband, sometimes proved hard to collect.85 Two fatwds, one from the Maghrib, the other from al- Andalus, attest to the need to call upon jurists to uphold the law.

(15) Al-Waghlisi (d. in the central Maghrib, 786/1384) was asked about a widow who wanted to collect her mahr from grain that her husband had left in storage; it was estimated that the value of the grain was equal to or less than the amount of the debt. Was it acceptable for the administrator of the estate to instruct the widow to take what she was owed and leave the rest for charity (khudhlhi fi mahriki wa-md baqiya fa'truklhi lilldh)? Or should the grain be removed from storage and weighed so that its value could be determined (weighing is a pre-requisite for the qabd of fungible goods)? The mufti responded that 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 question is discussed in the next section. 85 Idris, "Le mariage," 161.

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failure to do so would invalidate the transaction, which is similar to a sale.86

A second fatwc from an unspecified locality in al-Andalus mentions a similar set of circumstances:

(16) Upon the death of her husband, a widow demanded payment of her saddq from her children. But one of the sons had sold a garden that was part of the estate before the widow could collect her share. The sale reduced the value of the estate, which was to serve as the basis for calculating both the dower and the inheritance. The mufti confirmed that if a debt is payable on death, the deceased's properties may not be sold before the debt is paid. Persons affected by such a sale are entitled to sue the buyer. The widow was entitled to block any action by the heirs until her debt was paid.87

For the Malikis, the saddq had become a determining element in the validation of a marriage contract by the tenth century.88 For a marriage to be valid, the bride-groom must give a dower (in the form of property with a commercial value) to his future wife prior to consumation. By the fourteenth century, both Khalil in Egypt and Ibn Juzayy in Granada viewed as legitimate a young wife's acquisition of the dower through qabd,89 which seems to have become an accepted practice despite 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 marriage is 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 importance of 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).

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date, appears in all marriage contracts from Granada and in the notarial models. The notarial manual of Ibn Mughith contains several models dealing with the use of the deferred dower in different situations.92 One model deals with the renewal of a lost or damaged saddq-document: a husband testifies in the presence of witnesses that he contracted to pay his wife a dower, that he paid some of it, and that the remainder (the kali') was due to be paid at a given date.93 Had the deferred dower already been paid, the document would 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, prompted by husbands who were wrongly sued.94 Two other models demonstrate how a wife can renounce her deferred dower in favor of her husband: The first is a deposit (wad') in which a wife who is sound of mind and body renounces the deferred dower in gratitude for her husband's fine companionship and conjugal relations (indeed, an extraordinary document!) with her (tayyibatan bihi nafsihd shukran 'ald jamil suhbatihi wa-husn mu'dsharatihi lahd).95 The husband must acknowledge having received this concession (equivalent to 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 return for his not marrying a second wife and not requiring that she travel from her home town.96

Two marriage contracts from fifteenth-century Granada illustrate the relationship between the prompt and deferred dower.97 In the first document, dated 1438, 'All b. Ibrahim married his 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.98 The remaining 275 dinars was due two years subsequent to the date of the document. In the second document, dated 1488, Abfi Ja'far Ahmad al-Fakhkhar married the virgin, Umm al-Fath, daughter of Abi Qasim al-Hannat, in return for a saddq of six gold dinars and

92 Ibn Mughith, 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 dinar or dinar 'ashriyya was in use in Granada during the

fifteenth century. Equivalent to ten silver dirhams, it served as a useful alternative to the heavy gold dinar. See R. Arie, L'Espagne musulmane au temps de Nasrides (1232-1492) (Paris: de Boccard, 1973), 358.

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an array of fine silk cloth, which her brother Ahmad, acquired on her behalf. A deferred dower of two gold dinars was due six months subsequent to the date of the document.

The deferred dower is more important to a wife than the prompt dower. On the date that it becomes due, she usually has been liberated from interdiction as a minor and is free to use the resources for her own benefit. In spite of the care taken by jurists and notaries to register the exact amount of the deferred dower 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. Disregard for a widow's claim was especially likely to occur when several heirs were competing for the estate. The concurrence of the two muftrs leaves no doubt regarding the manner in which Muslim jurists regarded this particular situation, likening the dower to a contract of sale or hire. Although thefatwas provide evidence only for how the law should be applied, it is significant that the muftis upheld and confirmed a wife's rights to the delayed portion of her mahr.

Contribution to common property Although a husband and wife held their property separately, conjugal partnership created opportunities for joint investment. In such cases, careful documentation was required in order to avoid complications:

(17) A mufti by the name of Abf 'Abdallah al-Qara'a was 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 construction of the house, which therefore belonged to his estate. Neither party could support its claim with written documents. It also emerged that the couple jointly owned an irrigatedfeddtn, a berry tree (tat) and two piles of dried manure. The husband had purchased thefedddn and the berry tree from his wife, giving her the manure piles in lieu of payment. But the husband died without having summoned witnesses 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) that she had paid for the construction of the house and that her husband had acknowledged this, then she had a valid claim. In

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the absence of such evidence, she would be required to swear an oath to the truth of her claim; if she refused, the oath would be offered to the other heirs. The mufti observed that the husband's use of an imperfect verb in the phrase "we shall give you" (nu'tika) indicates that the transaction had not been completed, adding that the woman's acquiescence was indicated by her silence (sukaitihd).99

Commercial transactions between spouses were a common practice.?00 We have already seen that some wives sold their husbands whatever properties they brought to the marriage or acquired subsequently. In some cases, a spouse would forgo the formalities of the sale, or of a notarial recognition of her contribution to an economic enterprise, perhaps because the transaction took place between two closely-related individuals.101 If a dispute arose, the neglect of the requisite formalities often resulted in a loss for the wife.

Sisters and Brothers The frequent mention of gifts between brothers and sisters in thefatwds suggests that this was an important mechanism for transferring properties to and from women, perhaps in an effort to circumvent the inheritance rules. By their nature, 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 brother properties (amldk) over which he exercised effective control (kdna lahd bi-yadihi). When a disagreement arose between the brother and a third party, the brother denied the existence of the gift and asserted that the properties belonged