Kafāʾa fī l-Nasab in Saudi Arabia

Islamic Law, Tribal Custom, and Social Change

Dados Bibliográficos

ID7429883
AutoresNadav Samin (Princeton University, autor correspondente)
Ano2012
Volume2
Fascículo2
Páginas109-126
Data de publicação2012-12-01
Peer ReviewedSim
Open AccessNão
TipoARTICLE
PeriódicoJournal of Arabian Studies (JOURNAL)
Identificadores do periódicoISSN: 2153-4764 • E-ISSN: 2153-4780
EditoraTaylor & Francis (PUBLISHER • GB)
DOI10.1080/21534764.2012.735456
OpenAlexW1973128935
IdiomaEN
Citações recebidas9
Referências citadas10

Lineal compatibility in marriage (kafāʾa fī l-nasab) is a contentious subject in contemporary Saudi Arabia. This paper discusses the controversial legal case of Mans ̇ūr al-Taymānī and his wife Fāt ̇ima al-ʿAzzāz, a married couple who were divorced against their will by a Saudi judge because of complaints by the bride’s half-brothers about the groom’s tribal lineage. The Islamic legal discourse on lineal compatibility as applied to Saudi Arabia is examined as are the social backdrop and media context from which debates over lineal compatibility have emerged. Economic transformation and the weakening of tribal structures have caused the boundaries of tribal endogamy to expand, producing a broad range of reactions whose implications are also explored. Next, wider questions, including the effects of applying the kinship studies paradigm to studies on modern Arabia, are considered. After surveying the history of kinship studies in the Middle East, recent scholarship on kinship in Arabia confirms the need to develop new narratives through which to engage with the history and social life of the Peninsula. Keywords: Saudi ArabiamarriageArab mediaIslamic lawtribalismkinshipendogamyNajdSaudi historyanthropology Notes 1 Ziadeh, “Equality (Kafa’ah) in the Muslim Law of Marriage”, American Journal of Comparative Law 6 (1957), p. 503; Pearl, A Textbook on Muslim Personal Law (1987), p. 55. 2 Al-Azri, “Change and Conflict in Contemporary Omani Society: The Case of Kafa’a in Marriage”, British Journal of Middle Eastern Studies 37 (2010), pp. 121–37; Limbert, “Marriage, Status, and Politics of Nationality in Oman”, in The Gulf Family, ed. Alsharekh (2007); Ho, The Graves of Tarim (2006); Kurpershoek, Oral Poetry and Narratives from Central Arabia: A Saudi Tribal History. Honour and Faith in the Traditions of the Dawasir (2002). 3 Ziadeh, “Equality”, pp. 506–7. 4 De Bellefonds, “Kafāʾa”, in Encyclopaedia of Islam, 2nd edn (1960–2005), online edition. 5 Al-Khateeb, “The Oil Boom and its Impact on Women and Families in Saudi Arabia”, in The Gulf Family, ed. Alsharekh (2007), p. 85; al-Jeraysī, Tribal Chauvinism from an Islamic Perspective (2007), pp. 109–10; Interviews, Saudi Arabia, Jan.–Mar. 2011. 6 There are also instances in which men are forced by their families to divorce their wives due to their non-tribal status. By and large, however, the debates surrounding marital compatibility concern women and are tied in more broadly to the question of women’s autonomy in a rapidly changing Saudi society. 7 Yamani, Cradle of Islam: The Hijaz and the Quest for an Arabian Identity (2004), p. 85. 8 Ibn Qudāma, Al-Mughnī 9 (1996), p. 193. 9 That is, whether a woman’s guardians have the right to refuse to endorse a marriage contract if they deem her suitor to be lineally incompatible. 10 Vogel, Islamic Law and Legal System (2000), p. 246. 11 For some examples, see ʿUmar b. al-Ḥusayn Al-Khiraqī (d. 945/46), Mukhtaṣar al-Khiraqī (1964), p. 135; Muḥammad b. ʿAbdullāh al-Zarkashī (d. 1371), Sharḥ al-zarkashīʿalā mukhtaṣar al-Khiraqī: fī l-Fiqh ʿalā Madhhab al-Imām Aḥmad b. Ḥanbal 5 (1993), p. 59. 12 The granddaughter’s name was Bint b. Zuwayd ʿAlī Sālim b. ʿAwaḍ [Al al-Shaykh, “2736: al-kafāʾa fī l-nasab”, Fatāwā al-Shaykh Ibn Ibrāhīm]. 13 Interview, Riyadh, Nov. 2011. One indicator of origins can be found in the nature of Saudi last names. Names that refer to toponyms, such as al-Taymānī, after the H ̇ijāzī oasis Taymāʾ, suggest non-tribal origins. 14 Mubarak, “Sixth Month in Prison for Fāt ̇ima and Child”, Arab News, 20 Dec. 2006. 15 Al-Muqrin, “A Young Woman is Punished by Her Family for Obtaining Her MA, the Family Rejects Her Marriage for Lack of Compatibility of Lineage”, Al-wat ̇an, 17 Feb. 2007. 16 Al-Shallāḥī, “Divorce on the Grounds of Lack of Compatibility is an Arbitrary Splitting and is Destructive of the Stability of Families”, ʿUkāẓ, 6 Oct. 2006. 17 In the Saudi press, she is referred to as al-Ṭabība al-Maʿḍūla or “the female doctor who has been prevented from marrying”. Al-Mubārak, “Mother of Medinan Doctor: My Daughter is ‘Psychologically Unwell’ and Under the Influence of ‘Magic’”, Al-Medina, 27 July 2010; Anon., “Madinah Court Rejects Woman’s Plea to Marry Colleague”, Arab News, 19 Oct. 2010. 18 ʿAbdullāh, “Fathers Don’t Act This Way!”, Al-iqtiṣādiyya, 1 Oct. 2007. 19 Ṣunaytān, Saudi: the Political and the Tribe (2008); Alhujelan, Worldviews of the Peoples of the Arabian Peninsula: A Study of Cultural System, PhD diss. (2008). 21 Interview, Jedda, Feb. 2011. That this scholar would invoke an opinion by the founder of the Shāfiʿī school of Islamic law in contradiction to a Ḥanbalī position should not escape notice. Until the Wahhābi conquest, Shāfiʿism was the dominant legal school in the Hijāz, where few adhered to Ḥanbalism (the dominant school in Najd). In late nineteenth-century Mecca, for example, Ḥanbalī scholars in the Great Mosque had to be “searched for with a lantern” [Hurgronje, Mekka in the Latter Part of the 19th Century: Daily Life, Customs and Learning. The Moslims of the East-Indian-Archipelago (2007), p. 197]. 20 Nominal rulers of Mecca and Medina for a millennium, the ashrāf of the Hijāz were progressively disempowered after the 1926 Saudi conquest of western Arabia. Their symbolic authority persists in the guise of the Jordanian monarch King ʿAbdullāh, a direct descendant of the last ruling Hijāzī sharīf. 22 Many Najdis are skeptical about claims by Saudis to ashrāf status. This is due to both a Wahhābī bias against the investiture of religious sanctity in individuals and the sense whereby the rightful claimants to social legitimacy in the Kingdom are the loyal tribesmen of Najd, not the descendants of the opponents of King ʿAbd al-ʿAzīz. 23 Interviews with members of the al-Jāsir family, Riyadh, Nov. 2011–Jan. 2012. 24 Al-Jāsir, “Some Days in the Lands of al-Shām”, Al-ʿArab 3/4 (1980), pp. 169–71. The Najdi man was a member of the ʿAnqarī family of Tharmadāʾ, a town in the al-Washm region of Najd. 25 Al-Jāsir, Jamharat ansab al-ʾusar al-mutaḥaḍḍira fī Najd 1 (1981), p. 6. 26 Ibn Bāz, “How the Prophet Married ʿUthmān’s Two Daughters”, The Official Website of Shaykh Ibn Bāz. 27 Too harsh a verdict could risk alienating tribal conservatives and undermining the principle of heredity upon which the regime is based. For more on the equivocation of religious scholars regarding kafāʾa, see below. 28 Al-Suwayyān, al-Saḥrāʾ al-ʿArabiyya (2010), pp. 516–19. 30 Hillāl, Male and Female-Initiated Divorce in Poetry, p. 8. 29 Interview, New York City, Aug. 2009. 31 It is probably not a coincidence that progressive Saudi women will often interpret the case of Fāt ̇ima and Mans ̇ūr in terms of efforts on the part of Fāt ̇ima’s guardians (i.e. her half-brothers) to exert financial control over their half-sister, in the hopes of denying Fāt ̇ima her share of their father’s inheritance. 32 For a more thorough, though contrasting, view on women in contemporary Saudi society, see Le Renard, “‘Only for Women’: Women, the State, and Reform in Saudi Arabia”, Middle East Journal 62 (2008), pp. 610–28. 33 For a discussion of this verse in a different historical context, see Mottahadeh, “The Shuʿūbīyah Controversy and the Social History of Early Islamic Iran”, International Journal of Middle East Studies 7 (1976), pp. 161–82. 34 Al-Ḥaḍḍān, “A Number of Scholars Tell al-Riyāḍ: Tribal Chauvinism is a Jāhiliyya Call that Destroys Societies”, Al-Riyāḍ, 23 Nov. 2007. 35 Al al-Shaykh, “A Thought on Compatibility of Lineage”, Al-Jazīra (newspaper), 24 Apr. 2007. 36 Al-Qarnī, “Compatibility of Lineage”, Al-Sharq al-Awsat ̇, 8 Mar. 2007. 37 Ibn Bāz, “Tribal and Non-tribal”, The Official Website of Shaykh Ibn Baz. 38 Al-Jāsir, Letter of 18 Mar. 1999, Catalogue Number 401, Maktabat al-ʿArab Archive, Riyadh. 39 For the Saudi judiciary, see Vogel, Islamic Law and Legal System (2000). 40 ʿUkāẓ, 6 Oct. 2006; according to one source I interviewed, there were over eighty cases like that of Fāt ̇ima and Mans ̇ūr awaiting adjudication with the Riyadh Municipality [Interview in Riyadh, Mar. 2011]. 41 A roundtable discussion hosted by the Saudi newspaper ʿUkāẓ underlined the role of judges in validating concepts such as compatibility of lineage through their rulings. Participants debated the merits of statutory or regulatory reforms that would either render it impossible for judges to reproduce the al-Jawf verdict or compel them to document their rulings [ʿUkāẓ, 14 Oct. 2006]. 42 A team of authors is said to write in his name. 43 Al-Jeraysī, Tribal Chauvinism from an Islamic Perspective (2007), p. 58. Another of al-Jeraysī’s books is called “The Virtue of Multiple Wives”, a reminder that his reformist position on the tribal issue derives from an Islamic as opposed to a liberal orientation. 44 Al-Jeraysī calls it “fabricated discrimination”. See Tribal Chauvinism, p. 185. 45 Samin, “Internet Bulletin Boards in Saudi Arabia: Analogues of Change and Resistance”, in Arabic and the Media, ed. Bassiouney (2010). 46 Interview, Riyadh, Aug. 2009. 47 See, for example, Saudi author and activist Muhannā al-Ḥubayl’s June 2007 essay on the subject for the website islamtoday.net, listed in the bibliography below. 48 Kuper, The Invention of Primitive Society: Transformations of an Illusion (1988); Schneider, A Critique of the Study of Kinship (1984). 49 “It is quite certain that people of low culture would not preserve their pedigrees with the minuteness which is found to be the case if they were not of great practical importance in their lives...” [Rivers, “The Genealogical Method of Anthropological Inquiry”, Sociological Review 3 (1910), pp. 1–12]. 50 Evans-Pritchard, The Nuer (1940); African Political Systems, eds Fortes and Evans-Pritchard (1940). 51 Gellner, Saints of the Atlas (1969); Bonte and Conte (eds), Al-Ansâb: La Quête Des Origines (1991), p. 23; Hammoudi, “Segmentarity, Social Stratification, Political Power and Sainthood: Reflections on Gellner’s Theses”, Economy and Society 3 (1980). 52 Waterbury, The Commander of the Faithful: The Moroccan Political Elite. A Study in Segmented Politics (1970). 53 Dresch, Tribes Government and History in Yemen (1989); Weir, A Tribal Order: Politics and Law in the Mountains of Yemen (2007). 54 Holy, Anthropological Perspectives on Kinship (1997), p. 137. 55 Cole, Nomads of the Nomads (1975), p. 8. 56 In more recent decades, a new kinship studies has emerged which, though encompassing new family and gender dynamics in much of the Western world, does not seem to account adequately for phenomena observed in places such as Saudi Arabia, particularly the reconfiguration of traditional tribal kinship structures in new guises. On the divide between old and new kinship studies, see Karsten, After Kinship (2004), p. 23. 57 Limbert, “Marriage, Status, and Politics of Nationality in Oman”, in The Gulf Family, ed. Alsharekh (2007), p. 176. 58 Ho, Graves of Tarim, p. 176. 59 Kurpershoek, Oral Poetry and Narratives from Central Arabia: A Saudi Tribal History: Honour and Faith in the Traditions of the Dawasir (2002), p. 89. 61 Interview, Riyadh, Mar. 2011. 60 Ibid., p. 88. 62 Rivers, “The Genealogical Method”. 63 See, for example, the genealogical compendia compiled by Saudi historian Ḥamad al-Jāsir and the cottage industry of Saudi genealogical studies these have spawned [Al-Jāsir, Jamharat ansāb (1981)]. 64 Interview, Riyadh, Mar. 2011. 65 Fuller and Narasimhan, “Companionate Marriage in India: the Changing Marriage System in a Middle-Class Brahman Subcaste”, Journal of the Royal Anthropological Institute 14 (2008), pp. 736–54. I thank Isabelle Clark-Decès for providing me with this reference. 66 This interplay was described to me by a Saudi genealogist as follows “Religiously... the Ḥanbalī school, the one that predominates in the country, considers that [kafāʾa fī l-nasab] is a condition for contractual validity [i.e. the parties to the marriage contract can agree that the condition must apply], but it isn’t a fundamental condition for marriage....Rather, [kafāʾa as a fundamental condition] is a popular tradition [ʿurf] of the people, a tradition that people adhere to among themselves, the tradition of marital equivalency. It remains this way, and will remain so until the Hour of Judgment” [Interview, Riyadh, Mar. 2011]. 68 Alhujelan, Worldviews (2008). 67 Al-Ghadhdhāmi, Tribe and Tribalism or Post-modern Identities (2009). 70 Ibn Taymiyya, Muḥarrar 2 (2007), p. 157. 69 Ho, Graves of Tarim, pp. 181–2. 71 Murphy, “Couple’s Forced Divorce Overturned after Complaint by Wife’s Brothers is Thrown Out”, The National, 30 Jan. 2010. 72 Hints of this codified future can be observed in the recent decision by the government of Saudi Arabia to forbid the independent issuance of fatwās by non-governmental religious authorities [Anon., “Saudi King Says Only Senior Clerics can Issue Fatwas”, Arab News, 12 Aug. 2010]. Additional informationNotes on contributorsNadav Samin I thank all the Saudi men and women who shared their perspectives with me, in particular, my teacher and friend Dr Khalid Radihan

Endogamy · Wife · Islamic Finance and Banking Studies · Islamic Studies and History · Socioeconomic Development in MENA