“what leads to the prohibited is itself prohibited”
and “blocking the means” were invoked, some-
times to a logical extreme, to limit women’s pres-
ence in the public sphere. Although many Muslim
women, urban and rural, needed to work outside
the home, in most places unrelated women and
men were separated by physical or behavioral bar-
riers to prevent close intermingling. A man could
socialize freely with a woman only if he was her
husband or ma™ram– a man permanently prohib-
ited from marrying her. Male relatives, by serving
as chaperones or guardians of women, limited the
access of unrelated men to those women.
From the standpoint of the law, one of the great-
est risks of unregulated sexual behavior was unde-
termined paternity. If women were considered
vulnerable in an insecure world, unprotected chil-
dren were even more at risk. A consistent underly-
ing principle in Islamic family law is that children
have the right to be acknowledged and supported
by their biological father. In order to establish this
relationship, Islamic law prohibited all sexual
activity outside marriage and concubinage. Any
child born to a wife is presumptively the offspring
of the husband. If a man wishes to deny paternity
for his wife’s child, he must take an oath that can be
rebutted by his wife.
In the case of concubinage, the schools of law
were split; the majority did not allow a man to deny
paternity of any child his concubine might bear.
Concubinage was strictly regulated, so that a man
could have sexual relations only with a woman
over whom he had full ownership; otherwise he
might accuse a business partner of impregnating
the slave. All children born to concubines had
rights equal to children born of free wives to sup-
port and inheritance. A woman who became preg-
nant by her master acquired the status of umm
al-walad(mother of a child) and could not be
sold or given away for the rest of her life. The
umm al-waladwas freed upon the death of her
master. Although the umm al-waladdid not in-
herit a fixed share of her master’s estate, she
could be freely willed up to a third of the estate.
Making this kind of provision for concubines
seems to have been common; the early jurist al-
Shàfi≠ì, for example, willed a variety of goods
(including a slave of her own) to his concubine
(Mattson 1999, 209).
The £anafìs, however, did allow a master to
deny paternity of his concubine’s child. In areas
where £anafìlaw was applied, the practice of
concubinage must have had very different conse-
quences, allowing more abuse of slave women and
less control over men’s sexuality. Since the Otto-454 law: family law, 7th–late 18th centuries
mans spread and enforced the £anafìschool over
many Islamic lands in the later medieval period, this
doctrine could have had a significant impact on
family relations and the slave trade.
In keeping with the principle that children have a
right to their biological lineage, Islamic law forbids
fictional adoptions. Caring for foster children or
orphans is highly meritorious in Islam, but an
adopted child should keep his or her own family
name, if it is known. Lineage is also protected by
allowing women only one sexual partner at a time –
her husband or master – while men can have up to
four wives in addition to concubines. After divorce
or being widowed, a woman cannot remarry until a
certain fixed period has passed (the ≠idda) to ensure
that she is not carrying her former husband’s child.
Similarly, a man cannot establish sexual relations
with a concubine until she has completed a similar
waiting period (the istibrà±).Marriage and divorce
With marriage, men assume the responsibility to
fully support their wives. Married women have the
right to control their own property, and even
wealthy women have no legal responsibility to con-
tribute to household expenses or their own daily
needs. The level of support provided by the hus-
band depends both on his means and the wife’s
social status. Both of these principles can be found
in the Qur±àn (2:233), where men are ordered to
maintain their divorced wives who are nursing their
children according to “customary standards of fair-
ness” (al-ma≠rùf), but that “no one shall have
a greater burden placed on them than they can
bear,” meaning that men should not have to pay
greater alimony or maintenance than they can truly
afford.
The husband’s commitment to the financial sup-
port of his wife is symbolized in the mahr– the mar-
riage gift pledged at the time of marriage. The mahr
(also called ßadàq) is typically comprised of cash or
other fungible property, although it could be any-
thing of value – for example, the manumission of a
slave woman by her master who then marries her
(Spectorsky 1993, 121). Typically, the amount of
mahris negotiated between the groom and the
bride or her family according to individual expec-
tations and cultural norms. The state applies cul-
tural norms in fixing a mahrin cases of divorce or
dispute if an amount has not been specified in the
marriage contract. In such cases, judges normally
award a mahr mithl, a mahrfor someone “like her”
in terms of social and economic status (Nasir 1986,
90–2). Here again, we see that social customs and
individual expectations, including women’s expec-