Book Description

"This study of ahliyya (legal capacity), illustrates how femaleness features as a category of law and further how sex difference determines the legal capacities of women. It originates in concerns for equality in South African debates on state recognition of Muslim marriage. Theoretically and methodologically, it is located in the interdisciplinary space of feminist studies and Islamic law, draws on feminist theories of sex difference and employs feminist methods of reading texts to theorise the differential treatment of women in classical and contemporary legal theory (uṣūl al-fiqh) and positive law (furū' al-fiqh). Reading classical legal theory texts taught in a Ḥanafī madrasas and contemporary adaptations of classical law I make apparent the 'imaginary configurations', 'metaphoric networks' and points of tension through which the texts convey ideas about the woman of Islamic law.In the complex formulation of the female legal subject I find that classical Ḥanafī legal theory does not explicitly distinguish female legal capacity from male legal capacity; femaleness does not feature amongst the nineteen impediments to legal capacity. Nonetheless classical legal theory and positive law both distinguish between male and female legal subjects. The challenge in studying legal capacity and sex difference is to ponder the intersection of these two paradigms, the theoretical non-distinction of women's legal capacity from other forms of legal capacity and the distinctions between men and women in positive law generally. I find that the normative legal subject of the historical law is a free, adult, male yet, unlike the enslaved male and the infant or minor male, the female legal subject is not similarly distinguished by virtue of a differentiated category of legal capacity; gender is not a distinguishing legal category of the theoretical legal subject. Implicitly, however, in the classical legal text social norms come to work as natural conditions that attach to ideas of femaleness. Accordingly, it is incorrect to assume the absence of a distinctive category results in the absence of distinctive legal subjectivity for women. Rather distinctive legal capacity does not necessarily arise from a distinct category of legal incapacity. Instead, the law locates bodies in a matrix of other social categories, viz. reason, age, social class, life experience and marital status, so as to disrupt the symmetry of biology and sex differentiated legal capacity. It relies instead on a discursive construction of femaleness that formulates uneven legal capacities for women. The social facts that attach to women's bodies inform us of the ideological system that produces the female subject of the legal text. Contemporary legal theory, contrary to its classical precursor, either imposes severe restrictions upon women as legal subjects or pretends to the absence of distinction between female and male legal subjects. The pretense denies the differential treatment of women in the law while the restrictions result in a category of 'imperfect legal capacity' for women. Further, comparing classical and contemporary approaches, the former frames a distinct but discursive female legal subject, multiply and situationally constituted. However, both historical and modern approaches occlude the obvious impediment to legal capacity that marriage effects on female legal subjects, notably limitations on a wife's legal capacities within the marriage and the marital authority of husbands to manage the sociality, mobility, and spirituality of wives, ownership of the marital bond being a uniquely male legal capacity. Finally, contemporary legal theory frames inflexible determinates of female legal subjectivity and eventually produces essentialist and existential understandings of women. This illustrates the modern representation of women's legal capacity as not merely a modern manifestation of historical legal thought, but indeed modern in its origin and formation." --