#14034 - Joseph Schacht Family - Islamic Law

Joseph Schacht ‘An introduction to Islamic law’ – Family

• In the words of Schacht, the family is the only group based on affinity, which Islam recognizes. Islam is opposed to tribal feeling, because the solidarity of believers should supersede the solidarity of the tribe.

• Marriage is a contract of civil law, and it shows traces of having developed out of the purchase of the bride; the bridegroom concludes the contract with the legal guardian (wali) of the bride, and he undertakes to pay the nuptial gift (mahr) or dower, not to the wali as was customary in pre-Islamic Arabia, but to the wife herself.

• The contract must be concluded in the presence of free witnesses, two men or one man and two women; this according to Schacht has the double aim of providing proof of marriage and disproving unchastity.

• The requirements made of the witnesses are more important for the first aim, which is the aim of providing proof of marriage. However some may argue, surely there is only need for one and only witness, which is Allah (God).

• This contract is the only legally relevant act in concluding marriage; privacy between the husband and wife and consummation are facts, which may have legal effects when the marriage is dissolved.

• The wali (guardian) is the nearest male relative, in the order of succession, followed by the manumitter and his asaba and failing those, the kadi/judge.

• The wali can give his decision in marriage against her will if she is a minor, but when she comes of age, she has the right of going against his will. However Schacht tells us that some opinions hold the view that she does not have this right if it was her father or grandfather who gave her in marriage – similar rules may apply to the bridegroom.

• A free woman who is fully responsible may give herself in marriage, but the wali has the right to object if the prospective husband is not of equal birth.

• The degrees of equality by birth which are demanded only of the man, are: - members of the Kuraysh, the tribe of the prophet, other Arabs and non Arabs.

• The free man may be married to up to four wives and the slave up to two. The man who is already married to a free wife may not marry a wife who is a slave.

• Marriage is forbidden with the maharim, the non-marriageable persons, for example; one’s sister or aunt, or one’s mother-in-law. It is permissible to marry one’s first cousins and the half-brother’s half sister from another marriage.

• Fosterage, relationship by nursing is an impediment to marriage. It is forbidden to marry the sister of one’s foster mother. To produce a relationship by nursing, the smallest amount of...