Arab StatesPatricia Crone’s Roman, Provincial, and Islamic
Law: The Origins of the Islamic Patronate(1987)
set the cue for focusing on the synthesizing nature
of Islam and the syncretic pragmatic approach
taken by Arab conquerors when confronted with
ancient sophisticated societies in Persia and Egypt.
The new conquerors built on the pre-existing
bureaucratic and legal systems.
In regard to women, however, Islamic jurists pre-
sented Islam as a vast improvement over the pre-
Islamic treatment of women. While Islam did
indeed improve some practices detrimental to
women, for example, the killing of girl babies, it
restricted pre-Islamic rights of women in terms of
their status as heads of households.
In the course of time the Qur±àn did not stand
alone as the source of Islamic law. Much legal
weight was given to the Prophetic tradition (™adìth,
pl. a™àdìth) as a vital supplement to the Qur±àn.
This process can be seen as an attempt by jurists to
legitimate customs – Arab and non-Arab, Muslim
and non-Muslim – as a valid source for developing
Islamic law. The founder of the Màlikìschool of
law and author of one of the earliest Islamic legal
books, the Muwa††a±, a collection of a™àdìthrul-
ings, stressed the use of local customs to formulate
Islamic legal rules. Medinese rulings reflected con-
sensus and custom in Medina. It was expected that
Kufans and Basrans far away on the frontier would
not imitate them but form whatever rules were
needed for their situation. The rule of stoning adul-
terers, for example, exemplifies how local non-Arab
and non-Qur±ànic customs influenced the develop-
ment of Islamic penal law. The rule is based on a
™adìthin which the Prophet applied the Mosaic law
of stoning to a Jewish couple who came to him to
settle a dispute. In inheritance law, the introduction
of certain female heirs who are not mentioned in
the Qur±àn reflects the influence of blood money
customs. The a™àdìth uphold a grandmother’s
claim to inherit, but also convert female heirs into
residuary heirs so as to reduce their Qur±ànic shares
vis-à-vis male heirs and thus reconcile custom and
revelation. Customs not so favorable to women
were also incorporated into law as exemplified by
the story of how ≠Umar tried to convince the Prophet
to adopt the Persian custom of veiling women.
Law: Articulation of Islamic and non-Islamic Systems
Al-¢abarì’s official history of Islam relates how
the Arab Muslim leaders in the first century of con-
quest guaranteed in treaties with non-Arabs and
non-Muslims the continuance of their local cus-
toms and faiths in exchange for their pledge not to
ally with the military enemies of Arabs and Mus-
lims. The Qur±àn acknowledges Christian and Jew-
ish core beliefs (Mary’s virginity, the law as the
valid expression of faith, and so forth) and con-
fers preferential status on monotheists. This legal
autonomy coincided with the introduction of Arab
Muslim women to military frontier posts, which
constrained the right of Muslim Arab men to inter-
marry with local non-Muslim women. This evi-
dences a restrictive interpretation of the Qur±ànic
verse on intermarriage that was later expanded to
allow only Muslim men to marry non-Muslim
women.
As the Arab-Islamic empire grew in riches and
the number of female slaves expanded, rules were
devised to extend men’s right to polygamy. The
Qur±àn limited a man to four wives. The question
arose as to whether the rule applied to sexual rela-
tions with enslaved women, be they non-Muslims
or converts. This led to a debate not on whether
polygamy should be restricted to marriage with
widows with children, but on whether the Prophet,
who left nine widows, intended that the Qur±àn be
interpreted to allow nine wives for every man.
The differences between the Islamic schools of
law over the right of an adult woman to marry with
or without the consent of a guardian (walì), or the
ease with which she could divorce her husband are
probably due to different customs, although more
research is needed on this point. The right of a hus-
band to divorce (†alàq) without the consent of his
wife and to condense the repudiation into one sit-
ting, contrary to explicit Qur±ànic prescriptions of
a process extending over three menstrual cycles,
reflects the custom as revealed in the ™adìthof men
in pre-Islamic Arabia divorcing whenever and how-
ever they wished.
With the increased stability of the Islamic empire
in its second century, the consensus was adopted
that local custom was in principle a source of law.
Muslims could decide whether they wanted to go to
a judge who followed a particular madhhab(school
of law) which honored certain rules and customs
over others. A woman could choose the judge who