In his introduction to his influential and widely-cited survey on tribal law in the Arab world, Frank Stewart posits that weak pre-modern Muslim states were unable to extinguish the customary laws of the Bedouin, and even allowed these customary laws to take hold in village communities. Following Schacht, Stewart leads us to believe that the customary law of the Bedouin goes back to that of pre-Islamic Arabia.[1]
As Stewart acknowledges, however, his view of the tribal customary laws is not supported by any piece of historical evidence from pre-modern Islamic societies. The truth is that all of our knowledge of Bedouin tribal laws come from modern observations, mainly by colonial officers. The supposition that Bedouin legal practices are frozen in time, weathering centuries upon centuries of Islamization, has been so axiomatic in the field, it has never been properly questioned by medieval historians.
In this post, I would like to focus on a legal rule that is associated with modern tribal practices, that is the disinheritance of women. As is well known, the Qur’ān sets inheritance shares for women, generally half of that of men of the same degree, and Islamic tradition portrays the disinheritance of women as a Jāhilī pre-Islamic practice, abolished by the Prophetic message. Today, however, there are rural Muslim communities where women are systematically disinherited, in the name of a local “customary” law.
Because Muslim sources depict the disinheritance of women as a pre-Islamic practice, these instances of female disinheritance in Muslim rural communities are viewed as a remnant of a pre-Islamic, “Jāhilī past,” which Islam has not yet successfully eradicated. But, surprisingly, medieval references to customary disinheritance of women are not common, and do not appear at all prior until the thirteenth century. In fact, the absence of references to this practice in earlier Islamic sources raises the possibility that it (re-)emerged only in the later Middle Ages.
In an important but largely overlooked contribution, David Powers studied a series of legal opinions issued by fifteenth-century North African muftīs with regard to a question concerning the disinheritance of women.[2] The question, originally sent to a muftī in Tlemcen, states that the people in the lands of the qibla – the northern fringes of the Sahara, from the Zab mountains to Sijilmasa – are colluding to prevent women from receiving their inheritance, and have been doing so for the past four hundred years. Does a governor sent by the central government have a right or a duty to fight these people, who defy a major tenet of Islamic family law?
The answers of the muftīs are quite depressing to read, as they seem to be oblivious to the injustice committed against women in these communities. In fact, the jurists blame the women themselves, saying that they should have complained. They also argue that it is inconceivable that any Muslim community would behave in such a way, and therefore the claim cannot be valid. And in any case, it is impractical to return the property to its rightful heirs after so many generations. It is best, therefore, to do nothing.
Powers, following the lead of anthropologists like Stewart, frames the fatwā he studied as a case of the entrenched Jāhilī practices of “thinly Islamicized” tribal Berber populations. I think this is an unfortunate framing, as the fatwā makes no reference to the Berber identity of these communities, nor to the practices of the Jāhiliyya.
Nonetheless, the importance of this fatwā is that it is a rare attestation of customary laws, in the sociological sense, in a medieval Islamic society. Fifteenth-century rural communities in North Africa appear to have been systematically disinheriting women, and have been doing so for some time, following a set of unwritten rules pertaining to a distinct legal community. This is as close as we get to the “tribal laws” in their sociological sense.
I have now found a few other references to the disinheritance of daughters in medieval Muslim communities. The earliest appears to be in Ibn al-Mujāwir’s thirteenth-century account of the Arabian Peninsula. Ibn al-Mujāwir reports on the authority of a colleague that “the people of the mountains, the desert regions, the Bedouins and [the people of] Tihāma and Najd” marry off their daughters without allowing them any share of the inheritance. If the girl is a virgin, she is fitted out and married off at the expense of her father.[3] Ibn al-Mujāwir also claims that some local Meccan practices, such as the prostitution of female slaves, are remnants of the Jāhilī past.[4]
Later, Mamlūk-era legal sources also refer to the systematic disinheritance of females in rural communities. Ibn Taymiyya (d. 1328) was asked about powerful communities of agriculturalists, owning animals and crops, who do not perform prayer and who plunder each other’s property, selling their captives to the Franks. In addition, they marry women who are still in their waiting period, and disinherit females. The communities are not identified, but are clearly Muslim; they are most likely to be tribal groups in Greater Syria.[5]
Some fifty years later, Tāj al-Dīn al-Subkī (d. 1370) associates the disinheritance of females with Arab nomadic tribes. The wealthy Arab amīrs of our time, he says, engage in highway robbery, and the worst offenders are the Arabs of the Hijaz and their slaves (ʿabīd). Many of them abduct their brides without a legal contract. Among their obnoxious practices is the disinheritance of daughters, and the sexual promiscuity of their male and female slaves.[6] Anotherfourteenth-century reference comes from Ibn Battuta’s travels, when he reports disinheritance of women among the Beja people in the Eastern Desert of Egypt. Whether the Beja had by then converted to Islam is unclear.[7]
Finally, an unusual reference to female disinheritance is found in the hadīth commentary by the Egyptian scholar al-Qasṭallānī (d. 1517). In an off-hand anecdote concerning ethical consumption, al-Qasṭallānī notes that his contemporary Badīʿa, daughter of the scholar Nūr al-Dīn al-Ījī, spent thirty years in Mecca avoiding dates and meat coming from the nearby tribal areas of the Bajīla, because the people there did not give inheritance to their daughters.[8] Badīʿa’s formal legal reasoning must have been that all the produce the Bajīla community was tarnished by the illegal practice of depriving daughters of their shares. But it is not unreasonable to discern here a touch of feminism: while male scholars noted the disinheritance of women but did nothing about it, Badīʿa resorted to ethical boycott in order to make her point.
Put together, the examples cited above demonstrate that the systematic disinheritance of women in Muslim communities was prevalent in different rural or desert regions of the Middle East from the thirteenth century onwards, causing concern to jurists (and women) of the fourteenth and fifteenth centuries. While the North African example probably pertains to Berbers, Ibn al-Mujāwir and al-Subkī specifically refer to Arabs, so it seems unwise to link the disinheritance of women to any ethnic or cultural marker.
Counterintuitively, late medieval fatwās do not claim a primordial, Jāhilī origin for these practices. The only exception is Ibn al-Mujāwir, who views the prostitution of female slaves in Arabian tribes as left-over from the pre-Islamic past. We should remember, however, that Ibn al-Mujāwir was a foreigner from the eastern Islamic world travelling in the birthplace of Islam. Seeing traces of the Jāhiliyya would have been an easy assumption to make.
In fact, my searches so far have not found any reference to the disinheritance of women in any Muslim society before the thirteenth century.[9] I find that surprising, given the rich ethnographic data collected by Muslim geographers, the fascination of lexicographers with the practices of the Bedouin, and the many legal commentaries on the law of inheritance. If women were systematically disinherited in Arab and Berber-speaking communities from the seventh century onwards, why isn’t this mentioned in any ‘Abbāsīd, Fāṭimīd or Andalusian sources?
It may be, of course, that such references are yet be found, and the readers of this blog will stand to correct me. Or it may be that only by the fourteenth century did jurists begin to give any serious thought to the status of women or to the application of Islamic law in the countryside.
But I would like to venture another possibility. Is it possible that – at least in some areas of the Middle East – the disinheritance of women was a relatively new phenomenon, a “customary” practice that emerged under Islam, not a remnant of pre-Islamic culture? After all, the disinheritance of women is an economic strategy by a patrilineal group, not a cultural trait. Like other aspects of tribal and customary law, it can change over time, responding to social and political contexts.
Moreover, we might even speculate that the institutions of “Bedouin customary law” were themselves an innovation that occurred under Islam, and were intrinsically linked to the legal order of Islamic states. I am drawing here on Ahmad Amara’s insightful study of the late Ottoman customary tribunal in the Negev, where he demonstrates that Bedouin communities did not exist outside the state, and there was no exclusive “tribal law” that ruled their affairs.[10] Distinctions between state and customary law, even in pre-modern contexts, potentially exaggerate the homogeneity and insularity of “non-state” or “customary” law.[11]
The example of the disinheritance of women also demonstrates, again, that customary law is not neutral or natural. In the previous blog post, I suggested that share-cropping contracts were a product of power relations in the countryside, and that jurists’ acceptance of these “customary” contracts was an accommodation to the political order. Surely, this is even more apparent with the disinheritance of women, unquestionably a product of power relations. Accepting “custom” could often mean yielding to power, whether it is the power of the state or the power of the male elders of a tribe.
Notes:
[1] Frank H. Stewart, “Tribal Law in the Arab World: A Review of the Literature,” International Journal of Middle East Studies 19, no. 4 (1987): 473–90; Frank H. Stewart, “Customary Law Among the Bedouin of the Middle East and North Africa,” in Nomadic Societies in the Middle East and North Africa, ed. Dawn Chatty (Brill, 2006), https://doi.org/10.1163/9789047417750_011; Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1983) 77. Layish puts the same argument somewhat differently: “[A]lthough the Islamization of the Bedouin has been going on for centuries, it has not yet been fully completed.” At the same time, he is more explicit about the possibility of change: “[Custom is] an unwritten law shaped by daily practice and therefore accommodated to changing circumstances.” Aharon Layish, “Interplay between Tribal and Sharʿī Law: A Case of Tibbāwī Blood Money in the Sharīʿa Court of Kufra,” Islamic Law and Society 13, no. 1 (2006): 63-75.
[2] David S. Powers, “Law and Custom in the Maghrib, 1475–1500: On the Disinheritance of Women,” in Law, Custom, and Statute in the Muslim World, ed. Ron Shaham (Brill, 2007), https://doi.org/10.1163/ej.9789004154537.i-263.11.
[3] Arabic: wa-lam yuwarrithūna al-bint shayʾān. See Yūsuf ibn Yaʿqūb Ibn al-Mujāwir, A Traveller in Thirteenth-Century Arabia: Ibn al-Mujāwir, Yūsuf Ibn Yaqubwir’s Tarikh al-Mustabsir, trans. Gerald Rex Smith (Aldershot: Ashgate for the Hakluyt Society, 2008), 232-33.
[4] Specifically, the slave-girls of the Meccans prostituted themselves freely in order to pay off debts to their mistresses. Smith, “Some ‘anthropological’ passages,” 163-64; Ibn al-Mujāwir, Tārīkh al-mustabṣir, 7.14.
[5] Aḥmad ibn ʻAbd al-Ḥalīm Ibn Taymiyya, Majmūʻ Fatāwá Shaykh Al-Islām Aḥmad Ibn Taymīyah (Riyadh: Matạ̄biʿ al-Riyād,̣ 1961), 28:556-58.
[6] ʻAbd al-Wahhāb ibn ʻAlī al-Subkī, Muʿīd Al-Niʿam Wa-Mubīd al-Niqam, ed. David W. Myhrman (London: Luzac, 1908), 75ff.
[7] Muḥammad ibn ʿAbd Allāh Ibn Baṭṭūah, The Travels of Ibn Batṭụ̄tạ A.D. 1325-1354, trans. H.A.R. Gibb (Cambridge: CUP, 1958), 1:69.
[8] Aḥmad ibn Muḥammad al-Qasṭallānī, Irshād al-sārī li-sharḥ Ṣaḥīḥ al-Bukhārī, ed. Muḥammad ʿAbd al-ʿAzīz al-Khālidī, 15 vols. (Beirut: Dār al-Kutub al-ʿIlmīyah, 1996), 1:210. Badīʿa’s avoidance of foodstuff from the Bajīla is mentioned alongside other instances of ethical consumption. Her own father, Nūr al-Dīn, avoided the fruit produce of Medina because he was told they do not give zakāt. In the biographical entry for Badīʿa by al-Sakhāwī, he also refers to her avoiding produce from Bajīla, without specifying the reason. According to al-Sakhāwī, Badīʿa was born 845 AH, and was alive by the end of the 9th/15th century. Muhạmmad ibn ʿAbd al-Raḥmān al-Sakhāwī, al-Ḍawʾ al-lāmiʿ li-ahl al-qarn al-tāsiʿ (Cairo: Maktabat al-Qudsī, 1353 AH), 12:13. In the fifteenth century, the Bajīla provided most of the grain provisions of Mecca. Aḥmad ibn ʿAlī al-Qalqashandī, Qalāʾid al-jumān fī al-taʿrīf bi-qabāʾil ʿArab al- zaman, ed. Ibrāhīm Ibyārī (Cairo: Dār al-Ḥadīth, 1963), 104-05.
[9] See also Ahmed M. F. Abd-Elsalam, Das beduinische Rechtssystem: Konzepte – Modelle – Transformationen (Beirut: Orient-Institut, 2015), 58. Pierre Giuchard famously argued that until the late 4th/10th century, Arabs and Berbers in Muslim Spain followed what he calls an Eastern family pattern, meaning that they married within the extended family and disinherited women. His argument, at least with regard to the disinheritance of women, is not based on evidence. See Jessica A. Coope, “Marriage, Kinship, and Islamic Law in Al-Andalus: Reflections on Pierre Guichard’s Al-Ándalus,” Al-Masāq 20, no. 2 (September 2008): 161–77, https://doi.org/10.1080/09503110802283390.
[10] Ahmad Amara, “Civilizational Exceptions: Ottoman Law and Governance in Late Ottoman Palestine,” Law and History Review 36, no. 4 (November 2018): 915–41, https://doi.org/10.1017/S0738248018000342.
[11] Amara, “Civilizational Exceptions,” 929.