Women & Islamic Cultures Family, Law and Politics

Al-¢abarì, Tar±ìkh al-rusùl wa-al-mulùk, Cairo 1960–77,

Year 22.

J. E. Tucker, In the house of the law. Gender and Islamic

law in Ottoman Syria and Palestine, Berkeley 1998.

Tunisia, Majallat al-a™wàl al-shakhsiyya, Tunis 1956,

1970, 1998.

F. E. Vogel, Islamic law and legal system. Studies of Saudi

Arabia, Leiden 2000.

D. Webster, Abafazi bathonga bafihlakala. Ethnicity and

gender in a KwaZulu border community, in P. A.

McAllister et al. (eds.), Tradition and transition in

Southern Africa, Johannesburg 1991, 243–71.

Christina Jones-Pauly

The Caucasus and Turkey

A pluralistic legal system had developed in the

Caucasus based on customary law (≠àda), Sharì≠a,

and state laws (Russian). This system was applied

until the 1920s when Soviet power and law were

established and all other legal codes were declared

unlawful.

the caucasus

Pre-Soviet period

Until the 1920s, criminal cases were judged

according to ≠àda, domestic cases according to the

Sharì≠a, and other civil cases were subject to

Russian law. The predominance of customary law

in the Caucasus made it possible for women to feel

relatively free in society, though upholding their

rights was impossible for them.

Access to all the legal systems was limited for

women due to their special social status originating

in Caucasian national traditions and Islamic tradi-

tions that spread from the Ottoman Empire and

Iran to the Caucasus from the tenth to the nine-

teenth centuries. If a man enjoyed a high social sta-

tus, his wife was able to maintain her rights in the

society. Married women with children also enjoyed

a certain amount of legal freedom and protection.

Islam introduced some legal protection into the

family circle of Caucasian women. The following

Sharì≠a regulations appeared: husband’s correct

deportment toward his wife; observance of divorce

rules; and the introduction (in addition to the ≠àda

bride-price) of the mahr, and of the share of inher-

itance that was due to a woman, which equaled half

a man’s share (according to ≠àda, women received

nothing).

≠âdaand Sharì≠a legal procedures were con-

ducted by between five and ten men who had

knowledge of the ≠àda and Sharì≠a norms. Cauca-

sian social traditions emphasized veneration of the

390 law: articulation of islamic and non-islamic systems

elders and arbitrators were selected from among

the older men. In the Sharì≠a court, the qà∂ì(judge)

settled all the cases alone, using Arabic works

on Sharì≠a, which had penetrated the Caucasus

between the tenth and nineteenth centuries. Few

women had knowledge of Arabic.

The≠àdaand Sharì≠a courts initiated proceedings

only if there were applications filed by the partici-

pants in the case in dispute or their relatives (near

or distant). ≠âdaand Sharì≠a legal proceedings com-

prised four stages: the plaintiff’s case was heard;

the defendant’s plea was heard; the witnesses’ tes-

timony was taken; and the judgment was passed.

Women as plaintiffs

In general, women were able to take any legal

action but they had to do it indirectly, through their

male relations (father, brother, husband) or proxies.

A relation between the type of case and the person

who defended the woman’s rights can be observed:

the girl’s father drew up the marriage settlement

(nikà™); full brothers or first cousins took ven-

geance for an offence against the woman; and an

uncle took part in negotiations to settle questions

connected with the abduction of the bride (a tradi-

tional part of the arrangement of marriage). If a

widow of a murdered man had no relations able to

plead her cause, then proxies were appointed.

Women as defendants

A woman could not be a defendant in the ≠àdaor

Sharì≠a courts. Her father or husband stood as

defendant if she were being tried.

Women and testimonies

The following were considered as evidence in

≠àdaor Sharì≠a courts: the confession of the accused;

physical evidence; and witnesses’ statements under

oath. A Qur±ànic oath was typical of the traditional

legal procedure. The defendant was able to purge

himself by means of the co-oath of his relatives or

fellow villagers. Testimony of one man was equal to

that of two women. Women’s testimonies were used

very rarely. Only men could evaluate testimony

(Russian atauly, Kabardian th’eryiueshchyh’et).

In murder cases, after the court’s decision was

made, there was a rite in the Caucasus called a con-

ciliatory feast (Ossetian fyngaor tuji fyng, Russian

stol krovi, blood table). The conciliatory ritual

included visiting the mother of the murdered per-

son: a delegation of authoritative mediators to-

gether with the criminal’s relations went to the

house of the mother, or sister if the mother was

dead, and begged forgiveness.