Family law and succession

The terms ‘family law’, ‘succession’ and/or ‘personal status law’ are modern Western categories adopted by contemporary Muslim states in the process of modernizing Shariʿah law and codifying it. Islamic pre-modern law differentiates between matters of ritual and worship (ʿibādāt) versus relations among human beings (muʿāmalāt) of which marriage and succession fall, broadly speaking but not exclusively, under the second category. ¹ The pre-modern fiqh-literature deals with these matters under the headings of nikāḥ (marriage), ṭalāq (repudiation) and farāʾiḍ (lit. allotted portions: succession). ² Family law and succession are extensively dealt with in the Qurʾan and Sunnah. Sexuality outside marriage and legal possession, i.e. sexual relation of a man with his female slave, is forbidden and men and women are equally punished for unlawful sexual relation (zinā) (24:2–4), ³ which is God’s right. ⁴ Also mentioned in the Qurʾan are a woman’s right to dower (ṣadāq/mahr) (4:4), the man’s prerogative to marry up to four wives (4:3), man as head of the family (4:34), as well as forms of marriage separation (2:226–32; 65:1–5) and the waiting period (ʿidda) (2:228) a woman has to observe after the end of a marriage. Regulations in the Qurʾan can be interpreted as correcting the pre-Islamic custom: dower was now given to the woman herself and not to her father, a male’s right to marriage was restricted to four women and levirate marriage was forbidden (4:23), as was the practice of killing new-born baby girls (81:8–9). ⁵ On the other hand, traditions seem to imply that women had more space of movement and sexual freedom in pre-Islamic time, including the existence of different forms of marriage, which seem to have been matrilocal and matrilineal. ⁶ Khadija, the first wife of the Prophet and a rich and self-confident merchant, who hired Muhammad and offered him marriage, is often named in this respect. However, the scarcity and inconsistency of the sources of the first and second centuries do not warrant far-reaching conclusions. With all due caution, it may be said that verses and regulations reflecting gender equality, e.g. zinā – punishment for both men and women in the Qurʾan (24:2–4), stand beside verses which reflect gender hierarchy, such as 4:34. A variety of different types of marriages (obviously including matrilocal and matrilineal forms) in pre-Islamic time was replaced by a strict patriarchal, patrilineal and patrilocal form of marriage. The pre-Islamic legal practices were thus corrected and fixed by the Qurʾan. They can be seen as a reflection of the historical situation of seventh-century Arabia.