by Maya Shatzmiller. Cambridge, MA : Harvard University Press, 2007. 230pp. Hardcover. $28.95/£18.95/€22.00. ISBN : 9780674025011.
Reviewed by Jill Norgren, professor emerita, Department of Government, John Jay College and University Graduate Center, The City University of New York. Email : jnorgren [at] gc.cuny.edu.
HER DAY IN COURT is a publication of Harvard Law School’s Islamic Legal Studies Program, part of its series in Islamic Law. In this volume Professor Maya Shatzmiller, a student of Islamic institutions, particularly those of the Maghreb and Andalusia, uses Islamic court documents from fifteenth-century Granada to explore the nature of women’s economic rights. She has produced a “microhistory” of Muslim women’s property rights and equity in this period, examining “the legal entitlements of females to acquire property as well as the social and economic significance of these rights to Granada’s female population and, by extension, to women in other Islamic societies” (p.1).
Property rights are a basic marker of power and status in most societies. Famously, in several of its resolutions, the 1848 Seneca Falls Declaration of Sentiments brought attention to the many ways that American women were denied equal rights to property and, therefore, power and status. More recently, numerous NGOs and charitable organizations have drawn attention to the problem of millions of women around the world in exercising their rights “to own, inherit, manage, and dispose of property” (Human Rights Watch 2006).
Over the past several decades, scholars in many countries have provided important insights about the nature of women’s property rights. Among those who have written about gender and property in Islamic societies are Azizah al-Hibri, Leila Ahmed, Mounira Charrad, Beshara Doumani, John Esposito, Annelies Moors, Amira el-Azhary Sonbol, and Judith Tucker. Some of this literature is nothing short of revolutionary. Recently, for example, the British historian William Dalrymple wrote that Ruby Lal’s 2005 study of the domestic life of the Mughals “is likely to rewrite completely the social history of the period” (Dalrymple 2007).
Shatzmiller’s volume is a welcome addition to this work. Early in the text she defines her approach to property rights: “Not to be confused with property itself or with rights to the land either in Islamic or in other medieval societies, property rights are legal provisions that entitle an individual to acquire, keep, and use property in a secure social and legal environment . . . . Among historians, viewing property rights as an incentive to engage in economic activity suggests a new philosophy of economic history, one that favours targeting the interactions of humans and institutions over employing technical and mathematical models” (p. 2). [*174]
The book’s raw data consists of documents covering the years 1421 to 1496, the last century of Islamic political independence in the Iberian Peninsula. These are records of private transactions, family and commercial deeds that residents of Granada registered in the Islamic court. They were preserved because the incoming Christian administration recognized them for their binding legal power and were eager to safeguard them. What Shatzmiller recognized about the records of these property transactions was the “strong showing” of Granadan women, strong for the sheer number of women represented as well as for the scope of women’s property-related activity. She posits that demographic conditions, namely the greatly diminished male population, caused by a society long at war, encouraged Granadan women to assume a more active and public role in property matters. She also asserts, however, that “the women in Granada clearly could not have done what the documents indicate they did unless their property rights were already in place. Thus the demographic conditions magnified the effect of women’s property rights but did not create them” (p.2). Muslim women’s property rights, she argues, are associated with the birth of “Islamic capitalism” in Mecca. Centuries later, Islamic law recognized varied and important economic rights on the part of the women of Granada.
Shatzmiller constructs the meaning and impact of these fifteenth century documents by using several sources of legal commentary and instruction. She selected the legal annotation of two fourteenth century Maliki authors as authority for the rules on women’s property rights. (Maliki is one of the four schools of fiqh, or religious law, within Sunni Islam). These authors were chosen for their chronological or geographical proximity to the Granadan documents. In addition, she consulted notarial manuals or formularies as evidence of templates easily available for use in diverse legal situations. Fatwas, advisories requested from muftis, were also used by Shatzmiller as a source of historical data and interpretation.
As would be expected, HER DAY IN COURT treats rights commonly identified as women’s rights. The book opens with an examination of the sadaq (money, or property converted to money, promised to the bride upon marriage). It moves on to a discussion of the modes, timing, and content of various gifts received by women. This includes property given to minors, often by fathers, through which parents maintained power over their daughters’ property and access to property income based on guardianship.
A chapter on inheritance law follows. This law, which permitted female family members to inherit, acquire, retain and use shares of family inheritance, is described by the author as inadvertently playing an important role in guaranteeing women’s property rights and in establishing their status as independent property holders.
HER DAY IN COURT also explores the important nexus between women’s bodies and property rights. Shatzmiller asserts that the right to choose whether to practice birth control, the right not to breastfeed, the right to wages for breastfeeding, as well as childrearing, each involved women’s property rights. An Islamic legal framework existed, she [*175] argues, that gave the female body “an independent legal status and that recognized the body as a repository of property” (p.11). In this period Islamic law, and jurists, regarded procreation as a matter of property relations. A husband and wife had rights respecting each other’s body that had to be acquired for each partner to fulfill his or her respective role in procreation. For the husband, engaging in intercourse with a wife was a property right, one that he acquired by paying the sadaq.
Shatzmiller’s treatment of breastfeeding breaks some new ground. Breastfeeding is specifically mentioned in the Qur’an as a remunerated activity, and mother’s milk as a commodity, establishing the activity as a property right. Jurists of all schools addressed the question of whether mothers, married or divorced, could be required to breastfeed their own children. Shatzmiller concludes that jurists viewed a mother’s milk as her commodity, one that could be withheld even with the prospect of a fatal outcome for the child, and that this was evidence that the jurists did not see a mother’s body as a husband’s property.
In her concluding data chapters Shatzmiller explores two additional, important topics: property rights in the context of religious conversion (how conversion by choice versus demand affected these rights), and juridical responses to women’s wage labor and commercial activity. Here she maintains that historians should focus on how well integrated women were in cycles of wealth acquisition and loss, and “how much economic integration benefited from women’s property rights” (p.193).
Summing up her findings, Shatzmiller argues that the record of the fifteenth century Granadan community offers “a model of the strength of women’s property rights and their positive effect on women’s social status and economic progress” (p.15). She holds this opinion despite employing the contemporary feminist analytic framework of law professor Carol Rose (1994) who has argued that women’s “taste for cooperation” may explain the loss of property held by women. (Rose, Shatzmiller writes, posits that “women’s perceived or real weakness in negotiating with related males is encouraged by the law and by the jurists and judges who apply it, leading to systematic inequalities and to the liquidation of women’s assets” (p. 14).) In several instances Shatzmiller draws upon Rose to conclude that male jurists played a role in depriving women of their property rights “by legally supporting society’s expectations that they sacrifice rights for the family’s welfare” (p.59). While the author may have been limited by the nature of her fifteenth century documents in writing more about the role of the jurists, at a minimum, she alerts us to the dichotomy between all law and the social processes by which it is interpreted and applied. Perhaps with more data, she might have drawn a sharper line distinguishing when, and why, jurists and family members succeeded in depriving women of their property rights.
Shatzmiller, an historian of the medieval Islamic world, writes that she undertook this book because “the issue of women’s rights has become, along with jihad, the public face of the Shari’a” (p.15). Although the evidence offered by the records from Granada is limited, she [*176] nonetheless believes that “it seemed appropriate to introduce this kind of evidence into the debate on women’s rights” (p.15). I take her purpose to be twofold. First, she set out to create a public historical record shaped by data rather than the rhetoric of an imagined past. In addition, in her words, she hopes that governments, asked to make policy about sensitive practices, will consult scholarly histories and their data. In discussing female circumcision, for example, she writes that the practice “is not sustainable with reference to the historical sources” (p.15). She stresses that “[I]n these debates, because the Qur’anic verses relating to women’s rights and the commentaries on them are open to various interpretations, the law will remain strictly interpretive unless the historical record is taken into account. Only a truthful and intellectually honest understanding of the past is likely to affect the status of women in the present, which the evidence presented here will surely enhance” (p.16). What needs to be said, however, is that a major debate exists about whether history rather than the Qur’an is dispositive.
HER DAY IN COURT is legal and technical, and is therefore not a book to be assigned in an introductory course, whether in history, women’s studies, or law and society. It is a volume to be read and consulted by scholars concerned, as Shatzmiller writes, with the thread that connects the institutions and practices of the past with contemporary theological disputation, and with local and national policy debates as they affect Islamic and non-Islamic citizens.
Dalrymple, William. 2007. “The Most Magnificent Muslims.” 54 THE NEW YORK REVIEW OF BOOKS 26-29.
Human Rights Watch. 2006. “Women’s Property Rights: Violations Doom Equality and Development.” http://www/hrw.org/campaigns/women/property/
Rose, Carol M. 1994. “Women and Property: Gaming and Losing Ground,” in PROPERTY AND PERSUASION. Boulder, CO : Westview.
© Copyright 2008 by the author, Jill Norgren.