such a woman was even more in need of the pro-
tection of a guardian, since she was most vulnera-
ble to deception and exploitation. Such a woman
without a male guardian should have one ap-
pointed by the state, which, in any case, always
retained the ultimate authority to remove or ap-
point a guardian.
Assuming that most guardians will act in the best
interests of their wards, classical Islamic law also
grants guardians the power to contract marriages
on behalf of minor male and female wards. Such
marriages could be consummated at puberty, which
is determined physiologically, although a minimum
age of nine for girls and twelve for boys is irre-
futably presumed (El Alami and Hinchcliffe 1996,
9). At that time, either party can repudiate the
marriage, by exercising the “option of puberty.”
Naturally, custom played an important role in
determining the extent to which the option was
exercised.
Determining paternity by
regulation of sexual relations
Throughout the medieval Islamic world, local
customs and beliefs differently affected the way in
which women’s sexuality was regulated through
the law. In some places, previously unmarried
women were expected to prove their virginity on
their wedding night by bearing an intact hymen.
Muslim jurists rejected this customary proof of
chastity and the justifications for the harm some
men caused to women because of this. As one
seventeenth-century Syrian jurist said, “being
deflowered does not necessarily mean that illicit
intercourse has taken place, for virginity can be lost
by jumping, or through menstruation, or with age,
and so forth” (Tucker 1998, 1). According to
Judith Tucker, classical Muslim jurists “took a clear
position here against social customs that assigned
fathers, brothers, and husbands the role of enforcer
of female sexual behaviour. Men could guard their
female relatives, especially minors, against involve-
ment in situations that might lead to improper
sexual contact, but an actual instance of sexual
intercourse outside of marriage was a crime against
religion: rigid rules of procedure and evidence did
not allow for any special family role and, further-
more, implicitly condemned any unilateral family
move to punish those presumed guilty” (Tucker
1998, 166).
As Tucker notes, however, the family was as-
signed a dominant role in preventing women from
situations that might lead to illicit sexual contact.
To this end, customary practices were often given
great deference. For example, the fourteenth-cen-
overview 453tury Syrian jurist Ibn Taymiyya permitted female
circumcision because it is can limit the “excessive”
sexual desire experienced by some women. Aston-
ishingly, Ibn Taymiyya prohibited piercing children’s
ears because it is physical mutilation. Although the
practice of female circumcision was not widespread
in the Muslim world, it is significant that Ibn Tay-
miyya was so convinced of the grave harm that
illicit sexual relations would involve that he waived
his own clear prohibition against physical mutila-
tion to permit it (Ibn Taymiyya, 18).
In the medieval Islamic discourse, sexuality and
sexual relations were generally considered a good
thing; at the same time, the desire for sexual fulfill-
ment, like the desire for other worldly pleasures,
could be distracting and corrupting. Unregulated,
sexuality could lead to injustice in this world and
distance from God’s presence in the next. Men’s
sexuality and behaviors were also heavily regulated
and controlled by the law and religious discourses.
If men engaged in illicit relationships, heterosexual
or homosexual, they could be ostracized by society
and punished by the law. However, because women
are considered to have tangible proof of their vir-
ginity, and because sexual intercourse can result in
pregnancy, it is much more difficult for a woman to
conceal an illicit relationship. A woman could not
simply turn to God in repentance for sexual trans-
gressions that harmed her state in the afterlife, she
often had to deal with real world consequences of
her actions.
In trying to make sense of the medieval jurists’
application of the law, we need to consider their
understanding of the social and political context in
which they lived. In premodern Muslim societies,
where security of life and goods was often elusive,
where state support and protection of needy
individuals was limited, where an official police
presence was minimal even in cities, and where
highways and rural areas were often subject to
attacks by bandits, it was the rare individual who
could have a secure life without the support of an
extended family. Family solidarity and group inter-
ests always limited individual choice, for men and
women. Women, however, were considered most in
need of protection both because they were deemed
more naive and emotional than men, and because it
was assumed that there were always men willing to
take advantage of vulnerable women. As long as
these perceptions about human nature were un-
challenged (and as long as women were sheltered
from public life they likely remained naive), the
authorities seem to have remained convinced that
the best way to achieve security for women was to
limit their contact with men. The legal principles of