ABSTRACT
Despite their popularized description as ahistorical, the foundational Islamic legal discourses were gradually produced in the formative period of Islamic civilization and crystalized under the Abbasid dynasty between the late eighth/second and eleventh/fifth centuries. This period witnessed the emergence of socio-legal communities or madhahib of which four among the Sunnis stood the test of time: the Maliki, Hanafi, Shafii and Hanbali schools of law. It is a particularity of the Hanafi school that its “founders” and their followers often diverged on a number of issues. The contemporary debate over marriage and sexual ethics in Classical Islam brings into focus the historical significance of the foundational Islamic legal discourses. Within the formative period of Islamic history, Islamic law conferred to the Islamic institution of female slavery its distinctive mark by legalizing concubinage between free men and slave women. Feminist scholars have argued that the legalizing of marriage and concubinage with slave women favored the development of a classical Islamic legal ethos that endorsed the fulfilment of masculine sexual needs and conceived of women as mainly sexual objects. Investigating the ethical principles underlying the regulation of marriage and concubinage in a selection of Abbasid foundational Hanafi legal texts, namely al-Shaybani's (d. 189/805) Kitab al-asl, al-Jami‘al-Saghir and al-Jami‘al-kabir; and al-Sarakhsi's (d. 1090) al-Mabsut, this chapter nuances this perception of the classical Islamic legal ethos by focusing on the divergences as well as the changes that emerged in Hanafi legal discourse, regarding marriage and sexual ethics between the eighth/second and eleventh/fifth centuries.
