| This dissertation explores the contractual nature of the marital relationship as manifest in the writings of Muslim jurists from the formative period, approximately 150--300 hijri, or 775--925 CE. Focusing on the interdependent rights and duties of spouses in juristic reasoning, I utilize works of substantive law from the Maliki, Hanafi, and Shafi`i schools to make two arguments.;First, I explore areas of juristic difference in both doctrine and argumentation. I challenge the idea, common today, that the legal schools were all basically the same with regard to women's legal rights in marriage. Analysis of jurists' complex textual tradition illustrates the human reasoning involved in developing what many Muslims today see simply as divinely-revealed law. By illuminating the diverse substantive rules of various schools, I make clear that there is no one authentic and unanimous view of Islamic marriage and what it entails for spouses.;Second, I show that despite these variations, the juristic approach to marriage was consistent in its basic conceptualization of the nature of the marital relationship. Formative-period jurists conceptualized marriage as a transaction that conveyed to the husband a type of ownership or control (milk) over his wife. While not identical to a sale or to the relationship between a master and slave, the jurists made frequent analogies between marriage and these institutions. The use of this vocabulary and these analogies furthered a process of increasing closeness in the jurisprudential understandings of the distinct phenomena of commerce, slavery, and marriage. |
