Free Marriage and Slavery in Early Islam by Kecia Ali Page B

ri da h a ) ” 52 or “against her will (k a riha) .” 53 In each case, the Prophet revokes the marriage or declares it null.
    Abu Hanifa takes his view about females in their majority further still. Like his teacher Ja ' far al-Sadiq, he holds that women can conclude marriage contracts. In Khansa ' ‘s case, as retold in the Kit a b al- H ujja, the Prophet separated her from the man to whom she did not wish to be married and “commanded her to marry” the man she wanted to marry. Abu Hanifa interprets the prophetic grammatical imperatives to include
    the actual conclusion of the marriage contract. 54 ( “Ja ® ala ilayh a ® uqdat al-nik ah .”) Later Hanafi texts point to the use of the active verb form in
    Q. 2:232 to describe women “marrying” spouses as evidence for their position. 55 The H ujja restricts itself to sunna evidence, suggesting that Qur ' anic grammatical arguments about women’s legal agency had not yet become part of the debates on this topic.
    Though he departs from the view of the other jurists in ruling that women may conclude marriage contracts, Abu Hanifa assumes, like his contemporaries, that families have a special stake in the marriage ar- rangements of their female members and that women should not marry beneath themselves. He permits women to contract their own marriages, though with restrictions that do not apply to men. For Abu Hanifa, a woman must marry a man who is at least her social equal (kuf © ). Though various criteria for suitability are given, the text notes pragmatically that “he is not an equal for her in any way if he cannot find the means for her dower or maintenance.” 56 Indeed, the bride must specify the full dower appropriate to a woman of her family, status, and, where relevant, per- sonal qualities. “If she selects a suitable match and does not settle for a reduced dower,” Abu Hanifa declares, “then the marriage is allowed.” 57 Abu Hanifa appeals to a statement attributed to the caliph ' Umar ibn al-Khattab: “A woman is not married except with the permission of her marriage guardian, someone of her family with sound judgment, or the constituted authority (al-sul ta n). ” 58 If the marriage she contracts meets these criteria, she could herself be considered a “member of her family with sound judgment.” 59 If it does not, her marriage guardian could challenge the marriage. Mona Siddiqui has suggested that the cosmo- politan and stratified society of Iraq was influential in the development of the Hanafi concept of suitability (kaf a © a), which has a more promi- nent place than in the jurisprudence of more egalitarian Medina. 60 Reflection also suggests a legal rationale: granting women the power to contract marriage without the involvement of a guardian raises the need for a more extensive check than would be the case under Malik’s or Shafi ' i’s view, where no marriage can be contracted except through a guardian. 61
    Women’s capacity to conclude marriage contracts divided the Hanafi authorities. The Kit a b al- H ujja defends Abu Hanifa’s view without dis- sent; in the Muwa tt a © Shayb a n i , though, Shaybani reports Abu Hani-
    fa’s view but sides with Malik, declaring, “There is no marriage without a marriage guardian.” 62 A prophetic statement affirming that “if a woman marries without a marriage guardian , her marriage is void, her marriage is void, her marriage is void” serves as proof here, as similar statements do in Maliki and Shafi ' i texts. Many versions of this senti- ment are found in the Mu s annaf s as well, though they do not appear in Hanafi texts apart from Shaybani’s Muwa tt a © . Thus, the Prophet’s words about the non-virgin having “more right to herself” meant only that she could withhold her consent for any marriage and not be coerced, al- Shaybani says, not that she could contract a marriage independently. 63
    At stake in all of these arguments is a basic question of female ca- pacity, or