Women, the Family, and Divorce Laws in Islamic History

By Amira El-Azhary Sonbol

The eighteen essays in this volume cover a wide range of material and reevaluate women's studies and Middle Eastern studies, Muslim women and the Shari'a courts, the Ottoman household, Dhimmi communities, children and family law, morality, and violence.

• Language: English
• Publisher: Syracuse University Press
• Release date: Aug 3, 2020
• ISBN: 9780815650478

Book preview

Dedicated to

Zahiyya al-Sawi and Soad al-Odeissy

Copyright © 1996 by Syracuse University Press

Syracuse, N.Y. 13244-5160

All Rights Reserved

First Edition 1996

07       8  7  6  5  4  3

This book is part of the Mohamed El-Hindi Series on Arab Culture and Islamic Civilization and is published with the assistance of a grant from the M.E.H. Foundation.

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984.

Library of Congress Cataloging-in-Publication Data

Women, the family, and divorce laws in Islamic history / edited by

Amira El Azhary Sonbol ; with a foreword by Elizabeth Warnock Fernea.—1st ed.

p. cm.—(Contemporary issues in the Middle East)

Includes bibliographical references (p.) and index.

ISBN 0-8156-2688-6 (alk. paper).—ISBN 0-8156-0383-5 (pbk. : alk. paper)

1. Muslim women—History. 2. Women—Legal status, laws, etc. (Islamic law)—Arab countries. 3. Domestic relations (Islamic law)—Arab countries. I. Sonbol, Amira El Azhary. II. Series.

HQ1170.W84 1996

305.48'6971—dc20                                                     95-40354

Contents

Foreword, Elizabeth Warnock Fernea

Contributors

Introduction

PART ONE

Reevaluatinǵ Women’s Studies

1.Women and Citizenship in the Qur’an

Barbara Freyer Stowasser

2.Women and Modernization: A Reevaluation

Afaf Lutfi al-Sayyid Marsot

3.La Femme Arabe: Women and Sexuality in France’s North African Empire

Julia Clancy-Smith

4.Organization of Culture and the Construction of the Family in the Modern Middle East

Peter Gran

PART TWO

Muslim Women and the Shariʿa Courts

5.Women, Law, and Imperial Justice in Ottoman Istanbul in the Late Seventeenth Century

Fariba Zarinebaf-Shahr

6.The Family and Gender Laws in Egypt During the Ottoman Period

Abdal-Rehim Abdal-Rahman Abdal-Rehim

7.The Divorce Between Zubaida Hatun and Esseid Osman Aǧa: Women in the Eiǵhteenth-Century Shariʿa Court of Rumelia

Svetlana Ivanova

8.Muslim Women in Court According to the Sijill of Late Ottoman Jaffa and Haifa: Some Methodological Notes

Iris Agmon

PART THREE

The Ottoman Household

9.Marriage among Merchant Families in Seventeenth-Century Cairo

Nelly Hanna

10.The Ties That Bound: Women and Households in Eighteenth-Century Eǵypt

Mary Ann Fay

11.Drawing Boundaries and Defining Spaces: Women and Space in Ottoman Iraq

Dina Rizk Khouri

PART FOUR

Dhimmi Communities and Family Law

12.Textual Differentiation in the Damascus Sijill: Reliǵious Discrimination or Politics of Gender?

Najwa al-Qattan

13.Reflections on the Personal Laws of Egyptian Copts

Mohamad Afifi

PART FIVE

Children and Family Law

14.The Rights of Children and the Responsibilities of Women: Women as Wasis in Ottoman Aleppo, 1770–1840

Margaret L. Meriwether

15.Adults and Minors in Ottoman Shariʿa Courts and Modern Law

Amira El Azhary Sonbol

PART SIX

Women, Morality, and Violence

16.Confined, Battered, and Repudiated Women in Tunis since the Eighteenth Century

Dalenda Largueche

17.Law and Gender Violence in Ottoman and Modern Egypt

Amira El Azhary Sonbol

18.Women and Society in the Tulip Era, 1718–1730

Madeline C. Zilfi

Glossary of Arabic Terms

Glossary of Turkish Terms

Works Cited

Index

Tables

5.1.Petitions Presented by Women in Istanbul in 1675

5.2.Those Whom Women Petitioned Against in 1675

16.1.Divorce, by Profession of Husband

Foreword

Elizabeth Warnock Fernea

The work that follows, Women, the Family, and Divorce Laws in Islamic History, challenges the received wisdom about the status of Middle Eastern women. It does so on many levels, putting in question Western perceptions: Middle Eastern women as passive and incapable of acting to improve their position; Middle Eastern women as prisoners of Islamic family law; Middle Eastern women as pathetic figures universally deprived of their inheritance.

Amira El Azhary Sonbol, the editor, and herself a historian, demonstrates the folly of intellectual interpretation based on a single reading of the text or archive, or a single monograph describing women in one Middle Eastern country at a particular time in history. She has done this by gathering together eighteen essays by historians of differing origins and perspectives: men and women who are Middle Easterners, Europeans, and Americans. Fourteen of the articles are based on careful archival research in several languages. The articles also demonstrate that archival documents may not always yield the same answers: what emerges depends on the questions asked, and those questions in turn depend on the preconceptions and interests of the researcher.

Sonbol’s contributors are looking at archival materials with fresh eyes and asking new questions of those documents. This approach is important for any history. For example, Sharon Quigley Carpenter, recorder of deeds for the city of St. Louis, Missouri, has noted in a recent article that if one examines the historical materials themselves rather than the generalized indexes of those materials, women in St. Louis had far more equality with men before 1850. She points out that Oscar Collet, in an effort to help historians, produced in the mid-1800’s an alphabetical index of all colonial and postcolonial records. In so doing, he made slavery disappear—on paper—because emancipations are not in his index. And any economic transactions or property inherited by a woman was indexed under her husband’s name, even if he were dead! Only now have women historians begun to bypass the Collet index and search painstakingly through the individual documents. And as they do so, a very different picture of Missouri women emerges—economically independent, capable of divorce and remarriage, enjoying political rights.¹

This is what Amira Sonbol is doing in her work, looking backward and forward in time at women’s legal and economic position. New research methods, new language skills, new scholars, often women like Sonbol herself, are beginning to change the way Middle Eastern history is viewed, to animate and deepen serious women’s studies across the globe. This is a hopeful and encouraging trend.

Forty years ago, when I first traveled to the Middle East with my husband, the social anthropologist Robert Fernea, information about the actual lives of Middle Eastern women was almost nonexistent. From what was to be found in the writings of travelers and missionaries, I gained an idea of a group that was oppressed, enslaved, veiled, illiterate, passive, yet at the same time exciting and erotic! My mother urged me to enlighten these poor people. They were exceptions, of course. Lady Mary Wortley Montagu (1688–1762), the wife of the British ambassador to the Sublime Porte, traveled to Istanbul in 1717 and wrote that Turkish women, despite their veils, or yashmaks, were the only free persons in the Ottoman Empire. Why? Because they had the right to own, manage, and inherit property, a right which English women did not gain until the twentieth century. Generally, travelers and missionaries sent home the accounts that the readers expected, accounts that only confirmed Western preconceptions. Even in this century, Gertrude Bell could explain that Middle Eastern women were poor and disorganized housekeepers as they had no proper cupboards; and Edith Wharton, on the basis of one afternoon in the company of a Moroccan gentleman’s wives, could repeat that, indeed, these women were hardly human, pathetic and passive, without ambition or energy. It is not surprising that early Western feminists decried the state of Middle Eastern women and saw their mission as one of bringing these creatures up to the level Western women had achieved. My mother certainly felt that way!

For many years after the first period in the Arab world, I obediently read anthropological accounts of the new paradigm that explained everything about Middle Eastern women: this was the public-private split. Men occupied the public sphere of politics and economics, the important areas of life. Women occupied the private sphere, the world of family, which was seen as peripheral to the center of society. Slowly, I realized that this assessment, like the accounts of early travelers and missionaries, was also a construction, albeit a more sophisticated one, based on preconceived ideas about the role of women and men. Like the new Anglo rulers who came into the Missouri territory convinced that English common law was the basis for male and female roles, the British and American anthropologists constructed Middle Eastern society in their own image. The importance of family relationships in economic and political life, the subject of this book, was completely disregarded.

Thus, one might conclude, as I did, that Western perceptions of Middle Eastern women are based not only on a limited knowledge of the area and the culture and on old preconceptions but also on their perceptions of themselves. Western women from the English-speaking world have struggled for the past century to achieve some economic, legal, and political parity, attempting to overcome a long tradition of inequality. Coming from behind, they sometimes lay upon women in other societies the burdens from which they have only recently been freed. This is particularly problematic in regard to the Middle East, given the early cultural superiority of the Middle East, and the recent shifts in economic and political power between East and West.

The writers of the essays that follow Sonbol’s informative introduction are urging the reader to look beyond old paradigms, to reevaluate preconceptions, to consider new evidence and new interpretations. Paul Ricoeur, the anthropologist, once wrote that hermeneutics is the comprehension of the self by means of the detour of the comprehension of the other. This is good advice, for Westerners have often judged, rather than tried to comprehend the other. Amira Sonbol and the contributors to this volume are pulling back the veils of history, providing us with the means to begin to comprehend the status of women in seventeenth-, eighteenth-, and nineteenth-century Middle Eastern society. We are in their debt.

1. This changed only when Napoleon sold his claims to the Mississippi in the Louisiana Purchase, and the Mississippi territory came under English common law. That law disenfranchised women, and so the Collet index is a historical document of their changed status.

Contributors

Abdal-Rehim Abdal-Rahman Abdal-Rehim is professor, Department of History, Azhar University in Cairo, and is at present on loan to the Department of History of the Emirates. Previously, he taught at Princeton, Tokyo, Qatar, and Riyadh universities and was president of the Egyptian Historical Association. Among his dozens of books and articles, the following works have been the most acclaimed: al-Rif al-misri fi al-qarn al-thamin ʿashar; al-Maǵhariba fi misr fi al-ʿasr al-ʿuthmani; Fusul min tarikh misr al-iqtisadi wa al-ijtimaʿi fi al-ʿasr al-ʿuthmani.

Mohamed Afifi is associate professor of history, Cairo University. Author of a number of articles on Ottoman Egypt, he has published two books on that period: al-Awqaf fi misr al-ʿuthmaniyya, and al-aqbat fi misr.

Iris Agmon teaches at the University of Haifa. She participates in conferences held in Israel and Europe.

Julia Clancy-Smith is associate professor of modern North African and Middle Eastern history at the University of Arizona. She obtained her Ph.D. in history from the University of California, Los Angeles, in 1988 and is the author of numerous articles on nineteenth-century North African and French imperial history. She recently published a scholarly monograph entitled: Rebel and Saint: Muslim Notables, Populist Protest, Colonial Encounters (Algeria and Tunisia 1800—1904), which was awarded the 1995 Alf Heggoy prize by the French Colonial Historical Society. She is currently working on an edited volume with Frances Gouda devoted to women and the gendered rhetoric of the French and Dutch empires.

Mary Ann Fay is assistant professor of history at the Virginia Military Institute, Lexington, Virginia. She has written on various aspects of women’s lives in eighteenth-century Egypt, including their property ownership and the institution of the harem. She is conducting research for a book on elite women in Ottoman Egypt sponsored by the Fulbright Scholars Program and a grant from the NEH/American Research Center in Egypt.

Peter Gran is associate professor of Middle East history at Temple University. He is author of Islamic Roots of Capitalism and Beyond Eurocentrism, a New View of Modern World History (Syracuse University Press, 1996).

Nelly Hanna is assistant professor at the American University of Cairo. She has published widely in Europe and the Middle East. Best known among her numerous books are Habitait le Caire and The History of Bulaq.

Svetlana Ivanona is an Ottoman historian and expert on Ottoman sicils in the Balkans. Her research focused on The Mahalle in Bulgarian Towns, 15th-16th c. She is curator at the Oriental Department in the National Library in Sofia. She has published a number of articles and is now writing a book entitled "Marriage and Divorce in the Eighteenth Century According to Local Sicils."

Dina Rizk Khouri is assistant professor of Middle Eastern history at George Washington University. She has published works on the social and economic history of Ottoman Iraq and is currently working on an urban history of Mosul in the Early Modern period.

Dalenda Largueche is assistant professor, Department of History, University of Tunis. Her published works include two books: Marǵinales en terre d’islam and Watan al-Munastir: Monoǵraphie d’histoire réǵionale 1676–1856. She has published numerous articles on the history of Muslim women, including: Crise, femme et violence dans la Tunisie precoloniale and Source archivistique et histoire de la femme tunisienne à l’époque moderne: propriété et statut social.

Afaf Lutfi Al-Sayyid Marsot is professor of history at the University of California, Los Angeles. She was president of the Middle East Studies Association in 1977; editor of the International Journal of Middle East Studies, 1980–1985, and president of the American Research Center in Egypt 1990–1993. She has written over thirty articles on the Arab world, women, humor, fundamentalism, and the ʿulamaʾ. She is also the author of Egypt and Cromer, Egypt’s Liberal Experiment, and Egypt in the Reign of Muhammad Ali.

Margaret L. Meriwether is associate professor in the Department of History, Denison University. She is writing a book on family law in Aleppo, 1770–1850. She is the recipient of Fulbright and SSRC fellowships, and is the author of Women and Economic Change in Nineteenth-Century Syria: The Case of Aleppo, which appeared in the book Arab Women.

Najwa al-Qattan is a Ph.D. candidate in history and Middle Eastern studies at Harvard University. Her dissertation is on the socioeconomic history of the Damascene Christian and Jewish communities in the eighteenth and nineteenth centuries. Her publications include The Damascene Jewish Community in the Latter Decades of the Eighteenth Century: Aspects of Socioeconomic Life Based on the Registers of the Shariʿa Courts, in The Syrian Land in the 18th and 19th Centuries; and "Ahl al-Dhimmah and the Shariʿa Court Sijills: A Textual Analysis." Her paper in this volume won the Ibn Khaldun prize for the most outstanding paper submitted by a graduate student in 1994 by the Middle East Studies Association, North America.

Amira Sonbol is assistant professor of Society, History and Law at the Center of Muslim Christian Understanding, School of Foreign Service, Georgetown University. She is the author of The Creation of a Medical Profession in Eǵypt (Syracuse University Press, 1992), Egyptian Society and Sectarian Strife in The Political Economy of Modern Egypt, and Egypt in The Politics of Islamic Revivalism: Diversity and Unity. Other contributions include: Adoption in Islamic Society: A Historical Survey in Children of the Modern Arab World and Changing Ideals of Feminine Beauty in Islamic Society: A Historical Survey, in Ideals of Feminine Beauty: Philosophical, Social and Cultural Dimensions. She is recipient of an NEH/ARCE scholarship.

Barbara Stowasser is chairman of the Center of Arabic Studies and associate professor in the Arabic Department, Georgetown University. She has published numerous articles, including Women’s Issues in Modern Islamic Thought in Arab Women: Old Boundaries, New Frontiers and "The Hijab: How a Curtain Became an Institution and a Cultural Symbol." She is also editor of The Islamic Impulse and author of Scripture and Gender: Women in Islam.

Fariba Zarinebaf-Shahr was born in Iran. She received her Ph.D. from the University of Chicago in Ottoman and Iranian studies in 1991. Her publications include various works on the history of Ottoman and Safavid women, urban history, and Ottoman-Safavid relations. She holds a joint teaching position at Bilkent University in Ankara and at the University of Illinois at Chicago.

Madeleine Zilfi is associate professor of history at the University of Maryland, College Park. She is the author of The Politics of Piety: The Ottoman Ulema in the Postclassical Age (1600—1800). She has also published many articles on the Ottoman period. Most notable are The Diary of a Muderris: A New Source for Ottoman Biography, in Journal of Turkish Studies and Elite Circulation in the Ottoman Empire: Great Mollas of the Eighteenth Century, in Journal of Economic and Social History of the Orient.

Introduction

Amira El Azhary Sonbol

A

woman came before the courts demanding to be divorced from her husband, who had broken his word by remarrying his first wife. It seems that, at one point during their marriage, he had divorced the first wife and promised the second never to take back the first. At that time, his second wife made it a condition that she would divorce him if he ever remarried his first wife. After the woman produced the requisite witnesses to his promise and his alleged remarriage, the court granted her a divorce and she received full financial compensation from him (Misr, Iʿlamat 1274/1857, 34:55–155). In another court case, a woman who had been beaten, abused, and "denied the shariʿa’s (Islamic law) guarantee of protection and good treatment" by her husband was refused a divorce by the courts even though she was demanding khulʿ (divorce by repudiation), thereby giving up all financial compensation due her from her husband. The husband, who by law had exclusive access to divorce (divorce being exclusively the man’s right except in the rare case where it is otherwise declared, which was not the case in this marriage), held out and demanded financial compensation over and above what he would have to pay her in case of divorce. Because the case was complex, it was referred to the mufti (on religious legal position) who disregarded the shariʿa’s guarantees to the wife yet, using the shariʿa, found for the husband and issued a general fatwa (juridical opinion) legitimizing a husband’s right to exact payment from his wife in return for a divorce (al-Fatawi al-Islamiya, 1984, xi).

What makes these two contrasting cases from Egyptian courts interesting is the fact that the first dates from 1274/1857 while the latter dates from 1959. A woman’s access to divorce had clearly changed from the middle of the nineteenth to the middle of the twentieth century; yet in both cases, the basis of the law was the shariʿa. These two cases are not unique but rather illustrate the contrast between the interpretation and application of shariʿa before and after the legal reforms experienced by the Islamic world since the end of the nineteenth century. Although these findings would not come as a surprise to researchers who are familiar with shariʿa court records, they contradict a common assumption in Middle Eastern women’s studies that modern legal reforms, with the introduction of nationally applied secular and rational laws modeled after European ones, brought about positive changes. This progressive approach to the history of women and family is part of a wider conceptualization of Middle Eastern history that sees a clear line of demarcation between the modern and the traditional, whereby the latter is characterized as backward and the former is seen within the context of a discourse on modernity. Thus, scholars have focused on questions such as: How can Muslim society modernize further? Why do the Muslim masses resist modernization? Who is to blame for the continued backwardness of Muslim society? The blame is usually placed at the door of culture and religion.

Conceptualizing the modern period as diametrically opposite to a traditional one has caused numerous misunderstandings in or of the history of Muslim women. Because the modern period has received the greater interest in Middle East women’s studies, research on women’s distant past has been rare. Feminist historians prefer instead to study the introduction of modernization into Middle Eastern societies. Also, in Western women’s scholarship, early emphasis was on serious research in women’s history. In Middle East women’s studies, theory has proven more popular than empirical historical research. Thus, the most comprehensive study of early Muslim women remains Gertrude Stern’s Marriaǵe in Early Islam (1939). More recently, a number of scholars have pointed the way toward the need for further historical research. These include Judith Tucker (Women in Nineteenth Century Egypt, 1968), Leila Ahmed (Women and Gender in Islam, 1992), and Nikki Keddie and Beth Baron, eds., Women in Middle Eastern History (1991). Notwithstanding these efforts, scholars continue to search the past for explanations for the present subjugation of women, and the role of Islam in this subjugation remains central to Middle East women’s studies.

Keddie and Baron (1991, 2) have pointed out how ideologically charged the discourse on Islam in women’s studies has become: some scholars are prejudiced against Islam, others deny its responsibility for the subjugation of women, and still others believe that the real role intended for women by Islam has never been implemented because of conditions after the Prophet’s death. Another example one could draw from this discourse is that of the veil. It has been a particular favorite among feminist scholars. Numerous books and articles have searched for causes to explain its contemporary reappearance after decades of growing westernization. Some scholars discuss the veil as a weapon of empowerment, while others have identified it with Islam and seen it as an instrument of patriarchal subjugation. Still others try to show its non-Islamic origins (see Zuhur 1992).

The activist nature and general acceptance of the modernization paradigm in Middle East women’s studies is partly owing to the fact that Middle East women writing about themselves are from social backgrounds that make them receptive to Western discourses and have at the same time been waging a battle for greater equality and rights. Elizabeth Fernea and Basima Bezirgan, eds., Middle East Muslim Women Speak (1977), and Margo Badran and Miriam Cook, eds., Openinǵ the Gates: A Century of Arab Feminist Writing (1990), show how Muslim women regard their own subjugation and regard the gender relations according to which they are expected to live.

The growing importance of Middle East women’s studies is in itself a reflection of the growing importance of women’s studies in general and of women scholars in Middle East studies in particular. Thus, it was natural that the first successes in Middle East women’s scholarship were works guided by the principles and objectives of the dominant Western feminist paradigm that emphasizes the liberation of women from patriarchal shackles and the achievement of equal access to political and economic power. Therefore, male dominance, or gender relations based on male dominance, is the predominant paradigm in Middle East feminist studies, as it is in Western feminism. Arab feminists like Nawal Saadawi and Salwa al-Khamash have minced no words in their attack on their societies, where women are considered the chattel of husbands, fathers, or brothers. Al-Khamash chose a representative title (here translated) to her book on the subject of enslavement, The Arab Woman and the Backward Traditional Society (1973), which focuses on Islamic traditions as the basis for the subjugation of Arab women, notwithstanding the great advancements they have made in education and the professions. To prove the enslavement of women, it is usual to present pertinent Qurʾanic verses that refer to men as keepers or protectors of women because of the physiological differences between them and to fiqh (juridical interpretations by the Muslim clergy).

The historical arguments used by Arab feminists focuses on women’s lives in pre-Islamic Arabia: women’s participation in battles waged by their tribes, the existence of polygamous and polyandrous marriages, and the wide acceptance of matrilineal practices. Some historians, like Leila Ahmed, have argued convincingly that Islam established a patrilineal, patrilocal system, emphasizing blood-relationships as essential determinants for inheritance of property. To assure legitimate inheritance, a young girl’s virginity had to be controlled before marriage; and a wife’s sexuality had to be controlled through seclusion, veiling, and a very strict moral code. Thus, according to Ahmed, Islam, with its merchant economy, transformed women who had lived relatively unfettered during the jahiliyya period (period preceding the coming of Islam) into the property of their families and husbands (1992, 44). In Republic of Cousins, Germaine Tillion takes up the connection between inheritance of property and the subjugation of women. She concludes that the continued practice of cousin marriage among Muslim Mediterranean communities was owing to their wish to keep wealth within the family (1983, 73). In making inheritance by women obligatory, the Holy Book . . . struck a terrible blow at the tribe . . . even as with more or less good grace they converted to Islam, tribes have bent their energies to evading ever since. The seclusion of women, the use of the veil, cousin marriage, and the domination of women became the answer (1983, 149–50).

Critics of the close association between Middle Eastern women’s studies and Western feminism have pointed to the fact that women’s studies in the West were born out of a women’s movement whose philosophy and direction were based on the concrete experiences and realities of women’s lives in Western societies. However, models based on the history of Western women do not reflect the concrete experiences and realities of Middle Eastern women, with the result that cultural and historical specificities have played a minor role in the greater picture presented by Middle Eastern women’s studies. According to Fedwa Malti-Douglas, the gender issues represent a futile dialogue on gender and women [which] has long attracted the West. Referring to Fatima Mernissi’s argument in Beyond the Veil (1975), Malti-Douglas continues, [when] women’s liberation in the modern Middle East is associated with westernization, the entire subject, willy-nilly, becomes enmeshed in political and civilizational debates (1991, 3).

Obviously, gender issues unite women around the world, but they manifest themselves differently in different cultures. Thus, one of the most important methodological problems with studies that focus on the question of Islam and the subjugation of women is the acceptance on the part of most scholars of the Qur’an, prophetic hadiths (compilations of the traditions of the Prophet), fiqh (Muslim jurisprudence), and other religious treatises as representing the actual as opposed to the normative condition of women. Different types of research, particularly archival and literary, which are favored by this volume of articles, show that social patterns were in great contrast to the official picture presented by these formal sources. If anything, the social discourse seems to point to a position quite opposite to what the formal discourse presents us. This means that the actual lives women led caused reactionary clergymen to interpret laws more conservatively. The looser the women, the stricter the interpretation.

Barbara Stowasser’s article, Women and Citizenship in the Qur’an, is one of four articles placed together at the beginning of this volume that reconsider specific issues of significance to Middle Eastern women’s studies: citizenship, modernization, the impact of foreign rule, and the nature of the family. Tackling the discourse on Islam in women’s studies, Stowasser questions the essentialism of the widely applied methodology by which text is used as proof for the subjugation of women. Rather, as Stowasser shows, notwithstanding the existence of a body of Islamic laws acceptable to the Muslim community at large, there are clear differences between the written word and actual practices during Islamic history beginning with the early formative period. While introducing us to the new subject of citizenship in Islam, she at the same time illustrates the diversity of Islamic scripturalist paradigms regarding women and ties the Qurʾan to the historical context of the period of Qurʾanic revelations, thereby explaining and comparing Qur’anic laws on citizenship with actual practices. Furthermore, she shows how Muslim communities have adapted laws to their actual practices rather than accepting the ideals of exegetic paradigms espoused by either medieval or modernist reformers. By doing so, Stowasser demonstrates why it is dangerous to accept the written law as being representative of actual historical conditions relating to social practices.

Similar conclusions are reached by Julia Clancy-Smith in her article "La femme arabe: Women and Sexuality in France’s North African Empire, and Peter Gran in Organization of Culture and the Construction of the Family in the Modern Middle East. Using the writings of French travelers, colonial officials, and the famous French feminist suffragists, Clancy-Smith shows how the image of Arab women, and in turn Arab society, was based on an emerging colonial gaze and discourse fixed upon la femme arabe, upon her sexuality, her femininity, her procreative powers. Well-intentioned French feminists tried through their writings to improve the condition of Algerian women; instead, their works emphasized the unique status of Arab women and depicted them as subject to sexual and other abuses rather than as active participants in gender relations pertaining to the historical context in which they found themselves. As Clancy-Smith illustrates, under French rule visions of empire and collective visions of Muslim sexuality fed into each other. As for Gran, he points out that following the Second World War, modernization theory became the basis of a new twist on Orientalism, by which Middle East society and culture were shown to be backward. Even after modernization theory lost its prestige in the 1980s, the study of the Arab family and women’s studies continued to provide an area for modernization theory to flourish. Accordingly, research has been focused on the role of the elites of both sexes and, at the same time has given no more than an impressionistic view of the internal logic of Middle Eastern culture or of the essential adequacy of a way of life of men and women, and of actual gender relations. Addressing the treatment of private versus public spheres in Muslim society, Gran asks whether the scholarly perception of Arab women as occupying a private sphere does not also characterize them as marginal to any public or political life, to history itself. By discussing a generic Arab family in which public and private spheres are clearly delineated, the picture of a submissive wife, sister, or daughter, with no role or voice of her own outside of the house, reinforces the picture of backwardness that modernization theory expounds. Rather than a generic family, Gran argues for a politically constructed nature of the family" that would show that dividing any society into private and public spheres is an artificial construct at best, that there are a multiplicity of families in various parts of the Arab world, and that the structure of the family and the nature of family and gender relations are specific to time and place.

Recently, scholars have called attention to the importance of drawing connections between gender relations and the historical process by which nation-states evolved in the Islamic world. Deniz Kandiyoti has pointed to the vital connection between gender issues and the efforts of newly established nation-states to forge new notions of citizenship [by establishing] new legitimizing ideologies and power bases in their respective societies (1991, 2). To do so, governments attempted to bring about the subordination of the family to the state’s will through what Kandiyoti describes as socialization designed to free citizens from the shackles of social customs and practices which are deemed to impede social progress and development (1991, 9).

This important scholarly effort calls attention to the significance of the political process in the subjugation of women; however, by designating exclusive control of the family and domination of men over women as shackles of society from which secularizing governments tried to wrest women, (Badran in Kandiyoti 1991, 201) the modern period is again presented in a positivistic way, dichotomously opposed to the traditional period preceding it. According to this view, piecemeal erosion of the religious establishment in the drive toward secularization occurred during the modern period, but personal status laws remained an exception. "For women this created an awkward dichotomy between their role as citizens of the watan (nation-state) and as members of the umma (religious community). In a division that was never precise, the state increasingly came to influence their public roles, leaving to religion the regulation of their private or family roles" (Badran in Kandiyoti 1991, 203).

There is no question that modernization has changed the situation of Muslim women dramatically and that the status of women has become one of greater openness and less seclusion. However, it should be emphasized that women in premodern Islamic society were quite dynamic and participated in decisions regarding legal and personal status. By looking through shariʿa court records, personal status laws, and nineteenth-century legal reforms, a number of articles included in this volume illustrate that women had much to say regarding social and gender relations and that the historical transformations of the last two centuries, although allowing women a greater public role, actually brought about a general deterioration in social maneuverability, especially for women. This deterioration was closely tied to the evolution of new state structures that fit the needs of new hegemonic elite combines, usually formed from alliances between foreign business interests and westernizing national leaders. In the process of nation-state building, the hands of the state extended toward family and personal laws, standardizing, codifying, reforming, and modernizing them. The process had a profound impact on the status of women, creating for them, so to speak, a double jeopardy.

Addressing the question of the impact of modernization on the status of women, Afaf Marsot demonstrates that modernization brought better health services and ultimately modern education to women, but that nevertheless the dynamics of modernization had a regressive effect on women and society at large, at least temporarily. During the decentralized Mamlukid period in Egypt, working-class women played an active part in economic life, and the level of education among men and women did not differ much, with only the ʿulamaʾ (clergy) receiving a superior education. Beginning with Muhammad ʿAli (1805–1848), who as part of his centralization program confiscated most money-making elements and redistributed wealth among his dependents, women lost control over the land they held. As European merchants took control of Egypt’s commerce, and cheap European industrial goods flowed into Egypt’s markets, participation of Egyptians in economic activity became more localized, and their condition deteriorated as a whole. So did that of women who were previously involved in commercial activities and trade. The trades that remained open to women were either connected with services or with food production. Marsot concludes that modernization should be reappraised because, notwithstanding the benefits of change, women were pushed down the barrel in all areas of life, including gender relations.

Two other papers confirm Marsot’s findings regarding the activities of women before the modern period. Mary Ann Fay uses eighteenth-century Mamlukid awqaf (religious endowment) records to illustrate women’s participation in their families’ business decisions. While Marsot focuses on urban working-class women, Fay discusses the importance of the roles played by aristocratic women, who enjoyed autonomy over themselves and their property. In short, she shows women as active participants rather than reluctant observers only pushed to participate because of the absence of men owing to the mortality rate resulting from the anarchic political conditions in eighteenth-century Egypt.

Taking on the larger question regarding the continued acceptance of the oriental despotism cliché as the dominant image for the Ottoman family, Nelly Hanna tests the paradigm in relation to the Ottoman middle-class household. Her subject is the seventeenth-century family of a Cairene merchant leader, Shahbandar al-Tujjar Ismaʿil Abu Taqiyya. She challenges the widely accepted thesis that women in premodern Islamic society were ruled by the absolute power of a male hierarchy beginning with the husband and ending with the Ottoman sultan, with the result that a wife’s physical movement and her ability to control her own life were restricted, making her isolated and at the mercy of her husband. Using shariʿa court records dating from the Ottoman period, Hanna illustrates how this model is not born out by fact.

Although researchers should be cautioned against making presumptions regarding the condition of women during the Ottoman period, it is important to emphasize the significance of the connection between the rise of nation-states and gender relations, which Kandiyoti’s work outlines. It seems clear that as states in the modern Islamic world began to mobilize work forces and make and arbitrate laws, their legal jurisdiction was extended to social intercourse. In this way, the state became a direct determinant of patriarchal relations, which were molded along the lines of the ruling elites’ hegemonic discourses. This new situation, which we can label state patriarchy, differed from earlier forms of patriarchy where the family head was the arbiter of power relations within the family and in which ʿurf (tradition) determined the extent and nature of the patriarch’s powers. In the modern discourse, the state became an actual creator of culture as well as the promulgator of laws that were enforced directly from a central government. Because the new states and monarchies were the direct or indirect creations and allies of imperial European powers, they could not depend on traditional legitimacy alone for a hegemonic discourse. In regard to women, modernization meant their education and mobilization into the work force where they were needed. However, modernization was not meant to jeopardize traditions regarding gender roles.

Nothing exemplifies more the contradictions of modern state patriarchy than the fact that today Muslim women can aspire to becoming the heads of governments, yet they face often insurmountable difficulties in divorcing their husbands. When asked questions directly related to nation-state building, such as Who has the right to citizenship?, most Muslim countries deny citizenship to the children of mothers whose husbands are foreigners but bestow citizenship on the children of fathers whether the mother is foreign or not. The situation is described as shariʿa when in fact the question of nationality is itself quite modern. Because in most Muslim countries nationality is tied to property rights, which in turn are closely tied to inheritance, it is clear that the laws are setting up new patriarchal laws that give preference to the male members of society. Significantly, Christian minorities fighting against the application of the Islamic shariʿa in their communities today have no qualms in accepting Islamic inheritance laws, which demand that a male inherit double the share of a female (Sadiq 1989, 187). In short, questions related to nation-state structures have been used by male-dominated elites to introduce gender inequalities, notwithstanding their endorsement of modernity.

Clearly, the center of the debate regarding the history of women and the family is the question of shariʿa and the modern division of legal codes and the court system into the secular and religious, whereby the latter was applied to personal status laws and modern secular laws were applied to commerce, property, crime, and politics. This split is generally attributed to nineteenth-century legal reforms, Western penetration, and capitalist growth. One scholar has explained the continued association between Islamic law and Arab nationalism as being a form of nationalist cultural loyalty in resisting the cultural colonialism of the West (Hijab 1988, 38–42). As a result, personal status codes continue to be based on the shariʿa and are in conflict with modern Western-style constitutions of Muslim states, making it impossible to divide the two, particularly given the wish for independence of Arab states in their fight against imperialism. This has left women in the confusing situation of being guaranteed laws by constitutions that are not reflected in personal status laws.

In such interpretations, therefore, the shariʿa has been conceptualized as a static, unchanging system that Muslims believe to be the permanent word of God as delivered through the Prophet Muhammad. According to this view, secular governments tried to change the system but found resistance from the traditional patriarchal order. Thus, the modern reforms that were introduced had to be limited to political and economic spheres while personal and family laws were left to the shariʿa courts, which continued to be ruled in accordance with traditional laws that perpetuated gender oppression and the enslavement of women. This approach to the shariʿa in women’s studies conforms to the findings of general histories of Islamic law as well as to the picture presented by Muslim fundamentalists who claim a pure unquestionable authority in the form of a God-given shariʿa.

There are a number of problems with this approach to the shariʿa that have had an adverse effect on our understanding of gender problems and the role of women in Islamic communities in the past and the present. It is true that shariʿa continues as the basis for personal and family laws in the Islamic world, but it is not true that shariʿa constitutes an unchanging body of laws or that the laws and their interpretations are the same under nation-state conditions as they had been before the modern period. In fact, as the articles included in this volume show, shariʿa is in process, changing from time to time depending on the historical context and the particular moving forces of any given age. If anything, shariʿa is the body of acceptable laws of a particular community given legitimacy as the word of God delivered through a Prophet, but which are in actual fact the interpretations of local qadis (shariʿa court judges) who reflect the ʿurf (traditions) of the communities in which they serve, using appropriate fiqh interpretations that reflect the patterns of actual communal relations. In fact, the term shariʿa means acceptable laws, and, as Muhammed Afifi’s article shows, the term describes not only an Islamic shariʿa but also a Jewish shariʿa and a Christian shariʿa. Because it has been customary to deal with minorities separately from the Muslim majorities owing to the modern differences between them, most social studies have missed the similarities in legal practices that existed between different millets (non-Muslim religious groups) during the Ottoman period. The contributions in this book of Najwa al-Qattan’s study of Syrian Christians and Mohamad Afifi’s work on the Egyptian Coptic community demonstrate this point with great clarity. al-Qattan explains why in Ottoman Damascus the case to be made for religious discrimination is much stronger than the case for gender discrimination, while Afifi shows the points at which the Copts resorted to Islamic laws and the courts. Taken together, these two articles (as do most articles in this volume) illustrate the importance of looking at the Ottoman Empire through the specificities of time, place, and cultural conditions.

The shariʿa that came into being after the modernization of law and the reform of courts differed from the previous one in that it was designed to favor the new hegemonic order coming to power as part of the nation-state structure. It is a mistake to believe that the shariʿa code applied by nation-states in the modern period is simply a