An Evaluation of Pre-Modern Fiqh Rules Pertaining to the Marital Practices of Non-Muslims

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The objective of this paper is to examine certain normative pre-modern Islamic legal rules regarding marital practices of non-Muslims, including those who later accepted Islam, as stipulated by a variety of jurists in manuals of law representing the positions of multiple legal schools. The rules regarding marital practices are particularly interesting because marriage was a highly (perhaps even the most highly) regulated feature of Islamic law, and thus rules pertaining to it shed light on broader concerns that guided the process of rule-making conducted by jurists. In conducting this analysis, I identify three overarching principles that appear to have guided Islamic marital rules pertaining to non-Muslims: (1) First, I found that there was a large degree of autonomy granted to non-Muslims in practicing their own marital customs, as long as they did not seek intervention from Islamic authorities; (2) Second, I found that most non-Islamic practices of non-Muslims that took place prior to their conversion to Islam did not pose a concern for Muslim jurists; however, practices pertaining to the parties to a marital contract were the subject of concern for Muslim jurists; and (3) Third, I found that jurists were highly concerned with keeping a certain religious hierarchy intact, especially when it came to intermarriage between Muslims and non-kitābīs. I argue that the seemingly liberal laws pertaining to non-Muslims derive from (A) a conception of the world held by jurists that is best understood as akin to imagined political communities, and (B) an interest in ensuring consistency in the law.