المرأة في المدونة الفقهية الإباضية / Women in the Ibadi legal corpus

Lamya SHARFEDDINE (Department of History, University of Tripoli, Libya)

Introduction

The issue of women in Ibadism has been the subject of attention for a long time. It relies on a rich corpus, as the following sources testify: al-Wārǧilānī, Kitāb al-Sīra wa-aḫbār al-aʾimma (scr. ca 474/1081); al-Wisyānī (d. 557/1161), Siyar; al-Buġṭūrī, Sīrat mašāyiḫ Nafūsa (scr. ca 599/1202); al-Darǧīnī (d. ca 670/1271), Ṭabaqāt al-mašāyiḫ; al-Šammāḫī, Kitāb al-Siyar (scr. 9th/15th century). A non-exhaustive list of contributions to the topic can be reminded hereafter.

تالية سعدو، الحركة الفكرية بالدولة الرستمية وإسهام المرأة الإباضية فيها، جامعة وهران، 2011

فاطمة بلهواري ، المرأة الإباضية وإسهامها في الحركة الثقافية لبلاد المغرب، جامعة وهران، 2012

نبيلة حساني، ” المرأة في الأسطوغرافيا الاباضية”، مجلة الإتحاد العام للآثاريين العرب 14 (2014)، ص 249-256

شرقي نوارة وملياني زينب، “الدور الحضاري للمراة في المغرب الوسيط – العهد الرستمي أ نموذجا”، مجلة العبر للدراسات التاريخية و الاثرية في شمال افريقيا 5/3 (2022)، ص 346-360 

Virginie Prevost, « Les femmes berbères dans les sources ibadites du Maghreb médiéval », in Mena Lafkioui et Vermondo Brugnatelli (éd.), Written sources about Africa and their study, Rome-Milan, Bulzoni-Ambrosiana, 2018, p. 337-356.

This contribution leaves the field of Histories and ṭabaqāt to investigate the corpus of fiqh and especially the practical fatwas collections. Basically, two early works (2nd-3rd/8th-9th centuries) will be studied here. ʿAbd al-Wahhāb b. Rustum (d. 208/823), Masāʾil Nafūsa; Aflaḥ (his son, d. 258/871), Ǧawābāt; the Aǧwiba of al-Madiyūnī and al-Fazzānī.

The importance of the jurisprudential corpora to the social studies

Books of fatāwa and nawāzil represent an entry for historians into writings that were intially conceived to help solving problems. Mohamed Talbi had strongly advocated this promising approach decades ago, but also Claude Cahen, both insisting on the uniquenesse of these materials to grasp aspects of private and public life. Departing from theoretical essays allows to sketch a more real(istic) world.

Introducing the corpus

The study relies on three Ibadi jurisprudential ensembles.

ʿAbd al-Wahhāb b. Rustum is famous for his Masāʾil Nafūsa. The second Imam (r. 171-208/788-824) was educated in Kairouan, then in Tahert. He taught at the Rustamid capital and in the Nafūsa Mountains, where he spent seven years. The book is a result of his intensive correspondence with the inhabitants. It comprises ten thematic parts, for a total of 314 questions. The majority (68 i.e. one fifth) deals with marriage, divorce and widowhood.

Aflaḥ, his son, was the third Imam (r. 208-258/824-872). He is also recounted among the scholars (e.g. by al-Wisyānī). He authored Ǧawābāt al-Imām Aflaḥ, listing 131 questions, taken from his father’s.

The last text, Aǧwibat Fazzān, had been gathered by savants from the south. 1) Ǧanāw b. Fatī al-Madyūnī was a contemporary of ʿAbd al-Wahhāb. He was one of the many ḥamalat al-ʿilm (a propagandist of faith) sent from the Maghreb to al-Baṣra/Basra to receive training from Abū ʿUbayda Muslim b. Abī Karīma. 2) ʿAbd al-Qahhār b. Ḫalaf was a major figure of Sebha and a student of the former. 3) Abū Yūsuf Waryūn b. al-Ḥasan was the head of judges in the region and engaged them in a series of responsa. 4) Abū Bakr ʿAtīq [freedman?] b. Asadayn (?) frequented the aforementioned men. 5) Idrīs al-Fazzānī was a faqīh and a muftīof this milieu. These Aǧwibat Fazzān consist of two interlocked groups written by ʿAbd al-Qahhār and Ǧanāw. Seven books can be detailed in terms of interactions between these different authorities.

The issues related to women in this corpus

The variety of lexemes displays a vast array of types: al-marʾa; al-ǧāriya and al-ama (slaves), al-ṣabiyya and al-ṭifla (non-adults). Houcine Khlifi published in 2018 a study on marriage in Maghrebi Ibadism — النكاح لدى اباضية المغرب — using two manuscripts.

It is useful to try to construct sub-categories to treat this vast topic. Here again, we are confronted with a series of terms, mostly verbs [of actions], to distinguish: zawwaǧa and tazawwaǧa, malaka and mallaka,nakaḥa, ibtanā bihā, daḫala ʿalayhā or bihā, etc. 

Behind the word nikāḥ we find the idea of a contract (ʿaqd), as can also be inferred from imlāk, where the ḫuṭba would represent the first step and the dowry (called diversely ṣidāq, mahr or niḥla) surfaces regularly. The ḫāṭib addresses his request to the family authority or the legal authority (walī), possibly trying to bypass the father with his son. The walī happens to be the central decision-maker. He is the one who validates the legal union: lā yaǧūzu l-nikāḥ ʿindanā illā bi-walī (ʿAbd al-Wahhāb b. Rustum, invoking a tradition of ʿUmar b. al-Ḫaṭṭāb).

Besides, the consent of the woman and the slave is mandatory as soon as they are adults (bāliġ rāšid): lā yatimmu l-zawāǧ illā bi-riḍāhā. Should she be juvenile when married — on the condition that she is menstruated —, she could later break the contract when reaching the age of majority and keep her ṣidāq. There is a number of such cases about zawāǧ al-qāṣirāt, which was apparently common practice. The age would vary according to the social class.

On top of that, the dower acts like a prerequisite. It has to be paid [at least partly] before the marital relation starts. The evaluation of its amount, in cash or in kind, is left to the contracting parties. The ṣidāq al-miṯl is a standard observed in a similar context, if its price has not been fixed before the intercourse. 

The separation of the spouses is commonly known as ṭalāq. There also exists a possibility for the wife to ask for divorce provided she compensates her husband. This is the ḫalʿ. It implies, if we read the sources, a real initiative and liberty, because she can buy it (iftadā) against his will: wa-ḏukirtu raǧulan iftadat minhu mraʾatuhu ṯalāṯ marrāt… However, it requires from her financial means to pay for her independence. It can also take the shape of an unpaid part of the dowry, bi-l-māl allaḏī lam yuʿṭihā huwa. As for a decease, a waiting period (ʿidda) must be respected to avoid any dispute around pregnancy and paternity.

For what concerns the question of polygamy, we may encounter specific situations that generate either disapproval or debate: two wives, when one was previously the father’s spouse (makrūh); five wives (which exceeds the maximum legal number); the expected behaviour when a man has two wives from different social origins (one is rich, the other is poor).

To end this overview, let’s mention the problem of the absentee (ġāʾib) who is not seen as disappeared (mafqūd), because the probability that he is alive is much higher. In that case, his family has to wait for his return. In a society where trade causes many departures and long stays away from home, this represents a major point.

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