Married with Money: Financial Security for Women in Early Islam and Byzantium
Cultural contact between early Islamic societies and Byzantium, from the rise of Islam in Arabia to the Abbasid caliphate across the Near East, facilitated similarities in marital law and where differences arose, offered Muslims a point of reference with which they could contrast their marital laws with those of an “other.” These marital laws were all in some way interconnected with financial security for women, a priority, it seems, for both societies. In order to elucidate a complex system of cultural exchange, I will first emphasize the continuous contact between Islamic Arabia and later Islamic states with Byzantium fueled primarily by near- constant conflict. Second, I will point to similarities between Muslim and Byzantine marital laws, especially with respect to the trousseau or dowry, and the mahr or nuptial donation, that cultural contact may have engendered. Finally, I will demonstrate how, where Muslim and Byzantine laws differed, this contrast reinforced a Muslim sense of Byzantine “otherness,”especially where differences had visible practical consequences for the financial security of women. A close examination of this cross-cultural nexus, with special attention paid toward how Muslim attitudes toward divorce and polygamy ostensibly precipitated different consequences for women than Byzantine attitudes, will address a historical period and subject as yet hardly touched upon in Islamic studies. While I can in no way fill this deficit here, my analysis introduces a foundation upon which other scholars with similar questions can embark.
Even before the rise of Islam, the Eastern Roman, or Byzantine Empire had important relations with Arabia. At least one failed military expedition reached the southern tip of the Arabian Peninsula early in the first century CE and a new Roman province, Arabia, was established under Trajan in the second century and incorporated the Sinai and northern Arabian Peninsulas.1 Perhaps even more importantly for the purposes of this study, near-constant conflict between Byzantine and Arab armies after the rise of Islam facilitated unprecedented cross- cultural contact. While there is considerable debate “whether early Islam was a successor to the late Roman world in except the geographical sense,” the material record strongly suggests continuity in Late Antique communities living under Muslim rule.2 This cultural exchange permeated all levels of society, not only the non-elite. As Julia Bray notes, “caliphs were prepared to take lessons from state bureaucrats quoting age-old Persian political wisdom” and high political patronage stimulated the “recovery of Greek and late antique thought” in the Umayyad and Abbasid periods.3 Cultural contact between the Islamic caliphates and the Byzantine Empire continued for centuries, despite longstanding enmity. Nadia Maria El-Cheikh firmly asserts: “A permanent state of war did not discourage cooperative contacts. The frontier was a barrier, but also a point of contact as a semiporous border that permitted the exchange of ideas and standards, manners and customs, languages and literatures. Byzantium was not an impenetrable land.”4 Marital laws and practices, specifically with respect to norms ensuring financial security for women, could have very much been a part of this interchange of “ideas and standards, manners and customs.” Notable similarities in these laws in Byzantine and Islamic societies ostensibly substantiate this notion. It is by no means clear where these ideas, in so far as they are similar, originally came from, and I do not intend to identify such an uncertain cultural source here. However, distinct resemblances seem to suggest more than mere coincidence, and therefore point to a complex and, from a modern perspective, impenetrable system of cultural exchange.
Whatever form this cultural exchange may have taken, the similarities between Byzantine and Islamic marital laws are notable, specifically with respect to the marriage contract and dowry, or trousseau. Both cultures placed a certain emphasis on the protection of financial security for women, vulnerable as women were in the event of a divorce, prolonged separation, or some other kind of family conflict. In Islamic society, women typically acquired their property through marriage in the form of a trousseau, given to a woman as textiles, heirlooms, jewels, or household wares, or the mahr, a kind of dower paid by the husband or his family.5 Al-Shafi’i, Ibn Hanbal, and Ibn Rahwayh, all prominent Abbasid jurists, each claim that the mahr should reflect what “women in [the wife’s] family might expect to receive,” so that a woman’s financial security was commensurate with her status.6
Importantly, the trousseau and mahr were the exclusive property of the bride, and the mahr was strictly obligatory.7 The Qur’an explicitly stipulates that, in the event of divorce, the man could not appropriate this property.8 Marriage contracts, “central to the rights of married women” and intended to “prevent harmful actions on the part of a husband toward the psychological and economic well-being of his wife,” could additionally stipulate such restrictions and limitations. In fact, marriage contracts typically divided the mahr into two parts, the second to be paid to the woman in the event of divorce or widowhood.9 This “postponed” portion of the mahr therefore offered women even greater financial security, and could be used as leverage if an imminent divorce threatened a wife’s economic well-being.10 It should be noted, however, that not all women were this empowered. Husbands had the final say on matters of divorce or could refuse to adhere to the contractual stipulations, and “legal conditions for divorce varied from one juridical school to another,” some more favorable toward women than others.11Still, these marital laws enforced by Islamic courts were clearly intended to protect the financial security of women under ideal circumstances.
Roman law in the Byzantine Empire also protected the financial security of married women. As was the case in Islamic society, a women typically acquired her property through marriage, though in the form of a dowry from her family that could be used by her husband, even if it never really was his property.12 As such, this property was returned to a woman in the event of a divorce, not unlike in Islamic marital law.13 Beyond this, should a husband run into financial trouble, return of the dowry took precedence over any claims of his creditors. Justinian’s Digesta (533 CE) is unequivocal in this respect: “Dowry cases take precedence always and everywhere, for it is in the public interest that dowries be safeguarded for women: it is absolutely essential that women should be dowered to procreate offspring and replenish the state with children.”14 Finally, while a traditional principle of Roman law stipulated that gifts could not be made between husband and wife, an eastern custom called the “nuptial donation,” money or property gifted to a wife from her husband after their marriage, had become common by the time of Justinian.15 In fact, Justinian stipulated that this donation should be equal in value to the dowry.16 Again, in the case of divorce this property also belonged to a woman, so that both her dowry and nuptial gift stayed in her possession.17 As I noted above with respect to Muslim women, not all Byzantine women enjoyed these legal benefits. In a patriarchal society like that of Byzantium, women could not always “claim the dignity and independence aristocratic law-makers sought to give [them],” and powerful husbands could simply constrain their wives from legal action.18 Nevertheless, in ideal scenarios, Roman law protected the financial security of women in a manner extraordinarily similar to Islamic marital law.
While I have touched upon the many similarities in marital law in early Islam and the Byzantine Empire, it will be helpful to summarize them here. First, women in both societies acquired property from their families that was exclusively theirs, either in the form of a trousseau or dowry. Second, women acquired property from their husbands that was also exclusively theirs, in the form of the mahr or nuptial donation. Third, in both instances, women retained this property in the event of a divorce, even if only under ideal legal circumstances where husbands were compliant. Finally, both Roman and Islamic law officially protected women’s property claims, which were adjudicated in court. Clearly, Byzantine and Muslim attitudes toward the financial security of married women are strikingly similar in both theme and content. These resemblances as least in some way suggest cultural contact and exchange facilitated by near- constant warfare and the “semiporous border” between the Islamic caliphates and Byzantium, throughout the Rashidun, Umayyad, and Abbasid periods.19
Of course, there were still distinct differences between marital law in early Islam and Byzantium. These differences reinforced a Muslim sense of Byzantine “otherness,” especially where differences had ostensible practical consequences for the financial security of women. Before I elucidate these differences and their effects, it is important to note what I mean by a sense of “otherness.” From the onset of Islamic historical consciousness, the Byzantine Empire and its foreign culture served as a primary source of “otherness” in contrast to Islamic Arabia itself.20 While “Arab Muslims did not see the Byzantine Empire as barbaric, uncivilized, and inferior,” its alien customs were “corrupt, degenerate, and irredeemable.”21 There was very much a sense of “us” versus “them,” despite whatever cultural practices the two societies shared. This was especially true when it came to Islamic representation of Byzantine women and gender relations, “which served as a polemical focus for the belittlement of Byzantine culture.”22 For early Muslims, Byzantium and the new Islamic order could not have been more different when it came to these relations. From their perspective Byzantine women were decadent, promiscuous, and altogether immoral, whereas Muslim women were modest, secluded, and spiritually devout. However fictional this perceived dichotomy was, it formed an axis “along which identity and alterity were constructed.”23
Differences with Byzantium in marital law, then, offered Muslims a point of reference with which they could contrast their marital laws with those of an “other.” Whether this perceived “otherness” was consciously connected with differences in perceived consequences remains unclear. It is only possible at this historical distance to identify and explain the intimate relationship between “otherness” and real effects on the financial security of Muslim women. First, Muslim writers understood the feasibility of divorce as a major difference between Islam and Christianity as practiced in Byzantium. Al-Jahiz (d. 869), a prolific Abbasid scholar and theologian, flatly states that Christians could not divorce, except in cases of adultery in which the man is allowed to divorce.24 In a similar instance, the Andalusi geographer Abu ‘Ubayd al-Bakri (d. 1094), when discussing Europe and the Catholic papacy, affirmed that divorce was not allowed in Christianity.25 These statements probably tell us more about Muslim attitudes toward Christian marriage than actual practices, as their veracity is somewhat questionable. While Justinian did in fact make major changes in divorce law, making it much more difficult to attain a divorce except under special circumstances, Justin II, his successor, repealed these stringent laws.26 Nevertheless, Christianity itself was unequivocal in its opposition to divorce except in instances of adultery, as per Jesus’ teachings in the Gospel of Matthew.27
However easy it was to actually attain a divorce in the Byzantine Empire, Muslim writers interpreted Christian marital law in this respect as distinctly unlike their own, in which divorce was common and easily attainable. And, if Muslim writers were correct in their assessment, this would have uncovered a considerable rift in practical consequences for Byzantine and Muslim women, as it concerned their ability to use their financial resources in divorce cases. A Muslim woman who felt mistreated by her husband and wanted a divorce could negotiate the terms of the delayed part of her mahr. Because her husband could repudiate divorce proceedings, this was an important bargaining chip. She could renounce the mahr entirely, thereby making divorce more enticing, or even hand over part of her trousseau.28 In either instance, her financial security considerably empowered her to end an undesirable marriage. Byzantine Christian women, on the other hand, might have had more difficulty in such a situation if our Muslim sources are correct.29 If divorce was highly difficult to attain, irrespective of financial incentives, the dowry or nuptial donation of a Byzantine wife would be of little use. She was far less empowered, and therefore vulnerable in an undesirable marriage. Thus, those aspects of Byzantine marital law, which Muslim writers interpreted as “otherness,” translated into distinctly different consequences for Byzantine and Muslim women.
Monogamy was another marital practice indicative of Byzantine “otherness” that impacted Byzantine and Muslim women differently with respect to financial security. In addition to his comments on divorce, al-Jahiz points out that Christians are all monogamous, a peculiar feature of Byzantine marriage.30 Here, there is considerably less ambiguity about the veracity of al-Jahiz’s claim, at least in an ideal sense. Adulterous affairs aside, Roman law and Christianity both stipulated monogamous marital relationships, yet monogamy “must have seemed unusual, and certainly restrictive” to elite Muslims. 31 As it concerned Muslim women, polygamy was a serious threat to a married woman’s welfare.32 In addition to other aspects of her life, polygamy endangered a woman’s financial security, specifically when her husband took another wife or concubine when away from the marital home.33 Interestingly, this risk engendered specific clauses in the marriage contract in which “the husband renounced marriage to a second woman or the taking of a concubine.” The marriage contract could also stipulate “the length of absence accorded to the husband from the marital home,” thereby protecting a woman’s financial vulnerability if left alone for too long.34 Such clauses never made their way into Byzantine marriage arrangements, probably because they were never needed, at least under ideal legal circumstances. Legal polygamy was something Byzantine women did not need to worry about, and therefore it failed to threaten their economic well-being.35 Again, this constitutes another instance of Byzantine “otherness,” in so far as monogamous marriage was the norm, which produced different consequences for Byzantine and Muslim women.
The financial security of women in both Byzantine and early Islamic societies was a priority that manifests itself in their respective marital laws. Through the trousseau or dowry, and mahr or nuptial donation, women were at least theoretically empowered in a financial sense. While similarities in these laws plausibly derived from a complex system of cultural exchange from the rise of Islam to the Abbasid period, differences in marital laws nevertheless arose and thereby offered Muslims a point of reference with which they could contrast their own ideas with those of an “other.” More specifically, “otherness” as it concerned divorce and polygamy had practical consequences. Muslim women could use their financial means as leverage in divorce cases and were compelled to include marital restrictions in their marriage contracts, unlike Byzantine women in both respects. The degree to which Muslim writers were cognizant of the real life consequences of “otherness” is unclear and in need of further examination. In addition, real questions remain about how inheritance law, when examined alongside marital law, impacted the financial security of women, and what similarities and differences existed between Byzantine and Islamic inheritance law. Nevertheless, my analysis here demonstrates 1) the pervasive force of cultural contact and exchange, even in periods of long-term conflict, 2) the somewhat unexpectedly similar attitudes toward female dignity and independence in financial matters afforded to women in Christian Byzantium and Islamic Arabia and later caliphates, and 3) how “us” versus “them” cultural attitudes often translate into identifiably distinct laws and cultural practices.
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1 William Tarn, Eric Gray, and Antony Spawforth, “Arabia,” in The Oxford Classical Dictionary, ed. Simon Hornblower, Antony Spawforth, and Esther Eidinow (New York: Oxford University Press, 2012), Online.
2 Julia Bray, “Men, women and slaves in Abbasid society,” in Gender in the Medieval World: East and West, 300-900, ed. Leslie Brubaker and Julia M. H. Smith (Cambridge: Cambridge University Press, 2004), 121, 124.
3 Ibid., 125.
4 Nadia Maria El Cheikh, Women, Islam, and Abbasid Identity (Cambridge: Harvard University Press, 2015), 78.
5 Manuela Marin, “Women, gender and sexuality,” in The New Cambridge History of Islam, Vol. 4, ed. Robert Irwin (Cambridge: Cambridge University Press, 2000), 366-367; Shirley Guthrie, Arab Women in the Middle Ages (London: Saqi Books, 2001), 15. It should be noted that the mahr did not necessarily need to be tangible. When a man came to the Prophet asking him to give him a woman in marriage who had pledged herself to the Prophet but for whom the Prophet had “no need,” the Prophet asked him if he had “anything to give her as a bride-price.” When he said that he did not, the Prophet asked if he knew any of the Qur’an, parts of which the man recited. The Prophet thereby gave the woman to him in marriage “for what [he] knew of the Qur’an.” See Malik ibn Anas, Al-Muwatta, translated by Aisha Abdurrahman Bewley (London: Kegan Paul International, 1989), 210.
6 Susan A. Spectorsky, Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh (Austin: University of Texas Press, 1993), 19; Ibid., “Compilation of Ishaq b. Mansural-Kausaj,” 151. Ibn Rahwayh writes, “‘Umar said to al-Ash‘ath—that she can stipulate only the fair dower for women of her status; no more, no less.”
7 Manuela Marin, “Women, gender and sexuality,” 366; Susan A. Spectorsky, “Compilation of Abu Dawud al-Sijistani,” in Chapters on Marriage and Divorce, 67. Here, Ahmad Ibn Hanbal, the founder of the Hanbali school of Islamic jurisprudence in the Abbasid period, asserts that if a husband refuses to hand over his wife’s mahr, he is “obliged to give his wife a mahr.” Malik stipulates that the mahr only becomes obligatory “when a man goes to his wife and the veils are let down over the two of them.” See Malik ibn Anas, The Muwatta, translated by Mohammed Abdurrahman and Abdassamad Clarke (London: Turath Publishing, 2004), 231.
8 The Qur’an, translated by M. A. S. Abdel Haleem (Oxford: Oxford University Press, 2008), 4:20.
9 Manuela Marin, “Women, gender and sexuality,” 362.
10 Susan A. Spectorsky, “Compilation of ‘Abd Allah b. Ahmad b. Hanbal,” in Chapters on Marriage and Divorce, 108. Ibn Hanbal relates a story in which the wife of the Companion Thabit ibn Qais ibn Shammas went to the Prophet to say that she and Thabit were “incompatible.” The Prophet instructed that she compensate Thabit with her garden, which was her mahr, in return for the dissolution of the marriage. This is known as a marriage ended by khul.
11 Shirley Guthrie, Arab Women in the Middle Ages, 15; Manuela Marin, “Women, gender and sexuality,” 363. A close examination of juridical variations is outside the scope of this paper, though I direct the reader to Susan A. Spectorsky’s introduction in her Chapters on Marriage and Divorce, 27-59. There, she systematically analyzes the different kinds of divorce and differences in juridical interpretations.
12 Gillian Clark, Women in Late Antiquity (Oxford: Oxford University Press, 1993), 16. I should note here that Clark comments on how any property women inherited or acquired after her father’s death remained her own, independent of any marriage agreement.
13 Codex Iustitianus, 5.12.30. “A wife shall, after dissolution of her marriage, have the right to recover her dowry property, movable, immovable, or self-moving, provided it is still in existence. Simply because it seems to become part of the property of her husband . . . does not destroy or confound the truth.”
14 Digesta of Justinian, 24.3.1.
15 Gillian Clark, Women in Late Antiquity, 17.
16 Novellae of Justinian, novella 97. This section is titled “De aequalitate dotis et ante nuptios donationis,” or “Concerning the equality of the dowry and nuptial donation.” The law is clear: “We therefore correct this before all, so that what is given and stipulated by way of dowry and prenuptial gift shall be equal. The man shall give the same amount as the woman.” Later, “For the rule of justice and equality would not be preserved if they cheated each other as merchants do . . . because the quantity of the gift that was made is not the same.”
17 Gillian Clark, Women in Late Antiquity, 17.
18 Ibid., 17.
19 Nadia Maria El Cheikh, Women, Islam, and Abbasid Identity, 78.
20 Nadia Maria El Cheikh, Women, Islam, and Abbasid Identity, 77.
21 Ibid., 96.
22 Ibid., 78.
23 Ibid., 78.
24 Al-Jahiz, “Kitab al-radd ‘ala l-nasara,” in Rasa’il al-Jahiz, ed. ‘Abd al-Salam Harun (Cairo, 1979), 3:303–351, at 221–222. I do not believe this work has been translated into English. I found a brief summary of the points outlined in Nadia Maria El Cheikh, Byzantium Viewed by the Arabs (Cambridge: Harvard University Press, 2004), 122.
25 Nadia Maria El Cheikh, Women, Islam, and Abbasid Identity, 89.
26 Gillian Clark, Women in Late Antiquity, 25-26.
27 Ibid., 20; Matthew 19: 3-9.
28 Manuela Marin, “Women, gender and sexuality,” 364. I remind the reader of the story of the wife of Thabit ibn Qais ibn Shammas and her encounter with the Prophet. See note 10.
29 I feel compelled here to direct the reader to Gillian Clark, Women in Late Antiquity, 17, where she notes how “Augustine accepted his mother’s opinion that the marriage contract made wives the slaves of their husbands, and they should accept the fact.” Nevertheless, early Byzantium was far from wholly Christian, and the law of the state permitted divorce. There is still a contentious debate as to what extent Christianity influenced Byzantine law. Whatever the case may be, divorce in a Late Antique or medieval Christian community was clearly frowned upon and difficult to attain. 30 Nadia Maria El Cheikh, Byzantium Viewed by the Arabs, 122.
31 Andrew T. Bierkan, Charles P. Sherman and Emile Stocquart, “Marriage in Roman Law,” The Yale Law Journal, Vol. 16, No. 5 (1907), 303; Nadia Maria El Cheikh, Women, Islam, and Abbasid Identity, 89.
32 Manuela Marin, “Women, gender and sexuality,” 363.
33 Such a situation was quite plausible. Temporary marriage, or mutʿah, was and still is legally permissible in Shīʿī Islam. It has sometimes been interpreted as “legalized prostitution,” as its detractors claim it only serves to satisfy sexual desire. It is understood to have been outlawed for Sunnis by the caliph ’Umar. See Nikki R. Keddie, “The Past and Present of Women in the Muslim World,” in Women and Islam, Vol. I, ed. by Haideh Moghissi (New York: Routledge, 2005), 62.
34 Manuela Marin, “Women, gender and sexuality,” 362.
35 Although, it should noted, long distance trips undertaken by Byzantine merchants or sailors presumably created financial troubles for Byzantine women as well.
Al-Jahiz. “Kitab al-radd ‘ala l-nasara.” In Rasa’il al-Jahiz, edited by ‘Abd al-Salam Harun. Cairo, 1979.
Bierkan, Andrew T., Charles P. Sherman and Emile Stocquart. “Marriage in Roman Law.” In The Yale Law Journal. Vol. 16, No. 5, 1907.
Bray, Julia. “Men, women and slaves in Abbasid society.” In Gender in the Medieval World: East and West, 300-900, edited by Leslie Brubaker and Julia M. H. Smith. Cambridge: Cambridge University Press, 2004.
Clark, Gillian. Women in Late Antiquity. Oxford: Oxford University Press, 1993.
El Cheikh, Nadia Maria. Byzantium Viewed by the Arabs. Cambridge: Harvard University Press, 2004.
El Cheikh, Nadia Maria. Women, Islam, and Abbasid Identity. Cambridge: Harvard University Press, 2015.
Guthrie, Shirley. Arab Women in the Middle Ages. London: Saqi Books, 2001.
Justinian. The Code of Justinian. Translated by Fred H. Blume. Laramie, Wyoming: University of Wyoming Online, 2008.
Justinian. The Digest of Justinian. Translated by Alan Watson. Philadelphia: University of Pennsylvania Press, 1998.
Justinian. The Novellae of Justinian. Translated by Fred H. Blume. Laramie, Wyoming: University of Wyoming Online, 2008.
Keddie, Nikki R. “The Past and Present of Women in the Muslim World.” In Women and Islam, Vol. I, edited by Haideh Moghissi. New York: Routledge, 2005.
Malik ibn Anas. Al-Muwatta. Translated by Aisha Abdurrahman Bewley. London: Kegan Paul International, 1989.
Malik ibn Anas. The Muwatta. Translated by Mohammed Abdurrahman and Abdassamad Clarke. London: Turath Publishing, 2004.
Marin, Manuela. “Women, gender and sexuality.” In The New Cambridge History of Islam, Vol. 4, edited by Robert Irwin. Cambridge: Cambridge University Press, 2000.
Spectorsky, Susan A. Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn
Rahwayh. Austin: University of Texas Press, 1993.
Tarn, William, Eric Gray, and Antony Spawforth. “Arabia.” In The Oxford Classical Dictionary, edited by Simon Hornblower, Antony Spawforth, and Esther Eidinow. New York: Oxford University Press, 2012.