1993, 13). Common stipulations included the right
of the wife to divorce her husband if he took
another wife or a concubine, her right to reside
close to her family or in a certain town, her right to
a domestic servant, her right to a monthly or yearly
allowance beyond her standard maintenance rights,
the agreement of the husband to provide support
for his wife’s children by a previous marriage, and
the agreement of the husband not to travel away
from his family for long periods of time.
Of course, women’s rights to include stipulations
in their marriage contracts do not mean that all
women had the power to conduct such negotia-
tions. Poverty, low social status, and lack of family
support could deprive a women of the power to
meaningfully negotiate a contract. Although this is
true of people and contracts in general, it is likely
that women often had less freedom to freely nego-
tiate contracts than men. Nevertheless, it is signifi-
cant that by recognizing the validity of stipulations
in the marriage contract, classical Islamic law gave
women a potential instrument for negotiating the
lifestyle they desired with their future husbands,
and the legal force to compel their husbands to
abandon or adopt certain behaviors, or face puni-
tive measures.Maintaining family solidarity
The inclusion in marriage contracts of stipula-
tions that a man could not move his wife away from
her family is one indication of the importance of
family solidarity in premodern Muslim societies.
Islamic family law fostered and promoted mutual
dependence in a number of ways. The responsi-
bility of men to provide maintenance for female
relatives has already been discussed. Minor de-
pendents, male and female, also have the right to
complete maintenance from their male guardians.
This includes children of divorced men who are in
the custody of their mother. Parents and grandpar-
ents, if needy, have the right to full support from
their adult children and grandchildren.
Apart from financial responsibilities, the law
requires guardians to properly care for their chil-
dren. Babies have the right to be nursed, although
some scholars say this is not the legal duty of the
mother. If a woman does not want to nurse her
child herself, the father must pay a wet-nurse, if he
is able. If the parents are divorced, the father must
pay support to the mother if she is to nurse the
baby. Before age seven, children are considered to
need the care of a woman (™a∂àna). For this reason,
most schools of law placed young children in the
custody of the mother in case of divorce, but gave
the father custody rights for older children, when456 law: family law, 7th–late 18th centuries
they were considered in need of the protection and
mentoring of a father. Some scholars argued that
girls should stay in the custody of the mother until
marriage. In all cases, a father could fight the
mother’s custody if she remarried. Although the
step-father became a ma™ramto his female step-
daughters, the girls’ male relatives had the right to
have them removed from his household. According
to most Sunnìscholars, a young child in this situa-
tion should be placed in the custody of another
female relative; Shì≠ìs allow the father to take
custody.
Marshall Hodgson has noted that while Islamic
law strengthened the nuclear family against the
customs of pre-Islamic society, the law also aimed
to keep all intimate relationships within the law.
Thus, polygamy and concubinage were recognized
and legislated. Hodgson says that the “effect of the
Shari≠i rules on marriage was to accord to up to four
mates absolutely equal rights, which their children
also shared in; the kept mistress or the free-born
concubine [of the ancient world and Christian
Europe] disappeared, in effect, from among the
ordinary privileged classes... the Christian system
sanctified – and under favorable circumstances
surely fostered – a solidarity of interest in a couple
committed to a single marital union despite the
temptations of wealth. The Muslim system sacri-
ficed the primacy of conjugal unity in favour of
equality of rights on the part of all concerned”
(Hodgson 1974, 341).
To foster the solidarity of the extended family,
Islamic law designates fixed inheritance shares for
close family members, allowing no disinheritance.
In most cases, the Qur±àn allots male relatives dou-
ble the inheritance of equivalent female relations.
This inequality is explained by some scholars as a
compensation for the greater responsibility men
have to provide maintenance for family members.
The Qur±àn lists many categories of relatives who
can potentially inherit; the more close relatives
there are, the fewer distant relatives will be allotted
a fixed share. The Qur±àn does encourage Muslims
to leave something for more distant relations from
the third of the estate that can be be freely willed to
non-Qur±ànic heirs. Relatives who profess a differ-
ent faith can also receive an inheritance from the
third, since they are barred from receiving a fixed
share. One of the Prophet’s wives used this provi-
sion to will a third of her estate to her Jewish
nephew (Ibn Sa≠d 1990, viii, 102).Conclusion
Premodern Islamic legal texts display a wide vari-
ety of opinions held by classical jurists on almost