Could Women Own Agricultural Land? Rethinking the Relationship of Islamic Law and Contextual Reality (Wāqiʿ)

Muhammad Al-Marakeby

doi:10.1163/15700607-61040015

Abstract

Abstract Various studies have discussed the Ḥanafī opinion about the ownership of agricultural land. In this study, instead, I analyze the Mālikīs’ and Shāfiʿīs’ views. Their madhāhib suggested that arable land was in the public ownership of the state. However, I show how the systemized deprivation of women from inheriting agricultural land in the Ottoman period motivated late Mālikīs and Shāfiʿīs to divert from the standard doctrine of their madhāhib. Late scholars suggested that Egyptian land should be owned by the cultivators, and, therefore, be inheritable by both men and women. This turn of late Mālikīs and Shāfiʿīs, which stands as an antithesis to the Ḥanafīs’ development, stimulates us to think of a different mechanism of ijtihād. In this mechanism, Islamic law reform is defined by questioning and challenging the contextual reality (wāqiʿ) instead of being adjusted to it, even if this reality is not prohibited.

Highlights

The legal position of women is part of a wider problem, which relates to the tension between the theoretical sharia, the Islamic law of the book, and the law implicit in the kadis’ records, that is, “the practice of the
I show how the systemized deprivation of women from inheriting agricultural land in the Ottoman period motivated late Mālikīs and Shāfiīs to divert from the standard doctrine of their madhāhib
This paper will show how the systemized deprivation of women from inheriting agricultural land in the Ottoman period motivated late Mālikīs and Shāfiīs to diverge from the standard doctrine of their madhāhib

Summary

Introduction

The legal position of women is part of a wider problem, which relates to the tension between the theoretical sharia, the Islamic law of the book, and the law implicit in the kadis’ records, that is, “the practice of the. I show how the systemized deprivation of women from inheriting agricultural land in the Ottoman period motivated late Mālikīs and Shāfiīs to divert from the standard doctrine of their madhāhib. The paper addresses women’s access to their financial rights, looking at nineteenth-century Egypt, where state law and social custom deprived women of their presumed right of inheriting agricultural land.

Results

Conclusion