The Ties that Bind, Child Custody in Andalusi Mālikism, 3rd/9th-6th-12th c.

Abstract

This dissertation examines ḥaḍāna (custody law) in al-Andalus between the ninth and the early twelfth centuries. Through a close reading of Andalusi Mālikī legal works, I show how this body of law developed and evolved during the span of four centuries. In particular, I track Mālikī jurists’ commitment to the idea of maternal priority in custody and show how this priority extended well beyond a child’s biological mother to include growing numbers of women relatives. I call this large but tight-knit circle the “tribe of custodial women.” I analyze the principles and rationales jurists provided for women’s inclusion into this group. I show how this conglomerate protracted women’s priority in custody in the event that one or more forfeited, lost, or became disqualified for the role, while simultaneously extending children’s rights to be cared for by those deemed nearest to them and most apt for their physical and emotional care. Maternal priority to custody was not, however, boundless. I discuss the jurists’ rationales for the firmest frontier to women’s custodial priority—remarriage to a man unrelated to the child. I show how the elaboration of multiple exceptions and exemptions loosened this boundary in later centuries, a shift I attribute to changing kinship patterns in al-Andalus. Additionally, I pay particular attention to the role of religion and morality in women’s ability to retain custody, and probe whether Mālikīs’ protection of non-Muslim mothers’ custodial priority underwent any change in centuries rife with inter-religious tensions. I argue that despite the appeal of legal change in the academic study of Islamic law, the presence of continuities within the law of custody are at least as remarkable as the phenomenon of legal change, particularly in historical contexts where the rules espoused by the legal establishment (namely their protection of Christian women’s custodial rights) were perceived by some as religiously and politically inexpedient. Finally, whenever possible, I analyze what the jurists’ legal discourse on custody reveals about their conceptualizations of womanhood, motherhood, fatherhood, step-fatherhood and childhood.