her current marriage. However, a female expert
witness called by ≠Umar testified that this was a case
of a “sleeping child” (ràqid). The woman had been
pregnant by her first husband, but when he died,
the child, deprived of vital fluids due to the mother’s
extreme grief, had entered a state of hibernation.
When the woman remarried, her new husband’s
seminal fluid reawakened the child, who completed
his development in six months. ≠Umar accepted this
explanation by the female expert and the notion of
the sleeping child became a part of Islamic law,
especially in the Màlikìschool. Although not all
legal schools accepted this precedent, the law gen-
erally relied on female expert witnesses to determine
the facts of the case whenever female physiology
was involved.
Women also had opportunities to shape the law
to the extent that custom was recognized by and
incorporated into Islamic law. On matters on
which revelation was silent, custom (≠urf,≠àda) was
explicitly recognized as a source of law by the clas-
sical jurists. This appropriation of custom into the
law was, as Lawrence Rosen has stated, not “an
occasional trickle or an idiosyncratic intrusion pro-
moted by a rare commentator.” Rather, custom
was foundational to all aspects of the law. “Custom
is indeed, and always has been, a source of Islamic
law – but not in the European sense of source which
has been projected onto Islamic law, but as an inte-
gral part of the Sharì≠a itself” (Rosen 1989, 96).
This is particularly true in family law, where cus-
tom is normative in so many areas, particularly in
determining maintenance (nafaqa), custody, and
marital rights. What this means is that women were
not simply passive recipients of legal rulings.
Rather, where women had any power to shape and
articulate community norms (a power that de-
pended on a vast range of sociological and material
factors) they had the ability to influence the appli-
cation of the law. As Rosen has demonstrated for
contemporary Islamic courts, for example, the
expectations of individuals that the law should pro-
duce a “just” result compels jurists to continue
to search for principles and values of the law that
will support an outcome perceived as just by the
community.
Even during the time of the Prophet, as the
Qur±àn was being revealed, it seems that Muslim
women had expectations that Islamic rulings
would do them justice. Islamic literature contains a
number of reports of women expressing their con-
viction that God would affirm their sense of justice
by revealing what they considered to be a fair rul-
ing to the Prophet. Thus, ≠â±isha received the exon-
overview 451eration she expected when the punishment for the
slander of chaste women (qadhf) was revealed
(24:4). Khawla received the ruling she prayed for
when the Qur±àn prohibited men from divorcing
their wives by using a pre-Islamic formula known
as Ωihàr, stating “you are to me as the back of my
mother” (58:2–4). The Qur±àn refers to Khawla as
“the woman who disputed” (al-mujàdila) and the
chapter containing this revelation came to be named
after her. This clearly shows the effect of Muslim
womens’ expectations about Islamic law on the
course of revelation itself.
In terms of thesunna, women seemed to have
had relatively free access to the Prophet, and their
support was important in making his mission a suc-
cess. Women’s concerns, complaints, and expecta-
tions, therefore, shaped even the primary sources of
Islamic law. As Islamic law came to be articulated
and formalized over the centuries, women contin-
ued to play some part in supporting or discrediting
those who claimed to authoritatively represent the
law. For example, women could contribute to
undermining the authority of scholars by informal
social sanctions, like spreading gossip, and they
could contribute to the support of those scholars
they favored by giving their institutions alms and
by sending their children to study with them.
On the other hand, the concerns of men about
women’s place and authority could also provoke
revelation. Thus it is reported that after the Prophet
ruled that a woman could physically retaliate
against her husband who had hit her, many men
complained. The Prophet then conveyed a new rev-
elation that such retaliation was not permitted, that
men, as a final measure could use some physical
force to discipline their wives, but if that did not
work, they must seek arbitration (Qur±àn 4:34).
This authority to use force was certainly abused by
some men since cases are discussed by the jurists.
Muslims jurists developed a standard remarkably
similar to the English common law “rule of thumb”
in which husbands could not hit their wives with a
switch wider than a thumb. In Islamic law, a tooth-
stick (miswàk) was the standard. In cases of abuse,
some jurists allowed women to sue their husbands
for damages if they were injured or visibly hurt by
them (Tucker 1998, 66). Other jurists said that any
use of physical force could be considered prohib-
ited abuse in cultures where such force was felt to
be repulsive. It is likely that any woman seeking
protection from an abusive husband needed strong
family or community support; legal protection
could not be invoked if there were cultural barriers
to women accessing such protections.