OverviewThe development of Islamic
family law
Classical Islamic family law, like other areas of
Islamic law (the Sharì≠a), is based primarily on the
texts of the Qur±àn and the sunna of the Prophet
Mu™ammad, and the principles derived and in-
duced from those texts. Both bodies of texts con-
tain specific rulings as well as general principles
that form the basis of classical Islamic family law.
The foundations for this law were developed over
the first three centuries of Islam by scholars who
employed various methods of reasoning to inter-
pret the sacred texts. Scholars also developed a doc-
trine of consensus, the means by which particular
interpretations of sacred texts were rendered
authoritative (even “orthodox”). Differences in legal
theory, as well as cultural differences and various
historical developments resulted in scholars forming
themselves into “schools” (madhhabs) of law. By
the fourth/tenth century, there were four main law
schools of SunnìIslam: Màlikì, £anafì, Shàfi≠ì, and
£anbalì. Among the Shi≠ìs, the Twelver (also called
Ja≠farì) and Zaydìschools are the most important.
The formation of a scholarly community devel-
oped over time; at the beginning of Islam, it was the
Prophet Mu™ammad who was the authoritative
interpreter of the law. During his lifetime, the
Prophet gave rulings on many cases of family law.
It is clear that he was determined to provide some
regularity to the many diverse customs that gov-
erned family life in pre-Islamic Arabia (Hodgson
1974, 340, Stern 1939, 81). Over the next few cen-
turies, the law was developed and systematized by
scholars and state officials. Although legal scholars
were often reluctant to become involved in the
exercise of political power, from early on colleges
for religious and legal scholarship (madrasas) were
often sponsored by political rulers. In most urban
areas, judges and other officials who applied the
law were drawn from the body of madrasagradu-
ates. By the Ottoman period, this was a formalized
and centralized system; steps toward codification
of the law were taken, and Ottoman officials were
usually required to apply £anafìlaw. At the same
time, there were always scholars who did not hold
official government positions, yet their opinions
Law: Family Law, 7th–Late 18th Centuries
were treated as binding by individual followers and
communities.Contributions of women to the
development of the law
Understanding the development of a community
of orthodox legal scholars and the procedure for
selecting judges and other officers of the court is
crucial for understanding the development of clas-
sical Islamic family law. Many modern scholars
have seen the apparent exclusion of women from
legal scholarship and institutions to be responsible
for the development of a system of family law they
perceive to be biased against women. Not all of
these perceptions are justified. The content of the
law and the nature of its biases is discussed below.
With respect to the participation of women in the
scholarly discourse, from the beginning of Islam
until the end of the classical period, women are
included in biographical dictionaries of scholars.
Women are especially prominent in the early period
as transmitters of Prophetic ™adìth(Roded 1994,
63–89, Stern 1939, 21). On the other hand, it was
exceedingly rare for a woman to hold an official
political or legal office in medieval Muslim soci-
eties. This was primarily due to the widely held sen-
timent that it was better for women to limit their
presence among men in the public sphere in order
to maintain a chaste and wholesome society (Fadel
1997, 199). As a result, it is likely that the more
scholarship became instititionalized and closely as-
sociated with the state, the less opportunity women
may have had to participate in the legal discourse.
Throughout the centuries, however, female au-
thorities were never completely absent from the
process of law-making and adjudication. Female
witnesses were regularly called in paternity cases
and in cases that required expertise in some aspect
of female physiology or reproduction. Very early in
the development of Islamic law, the decisions of
some female experts set important precedents that
had significant consequences for women and their
families for generations. For example, during the
time of the Caliph ≠Umar b. al-Kha††àb (r. 634–44
C.E.), a woman who had been widowed gave birth
to a fully-developed child, only six months into her
second marriage. Naturally, the woman was sus-
pected of having had an illicit relationship before