Intentions : «This study of ahliyya (legal capacity), illustrates how femaleness features as a category of law and further how sex difference determines the legal capacities of women. It originates in concerns for equality in South African debates on state recognition of Muslim marriage. […] Reading classical legal theory texts taught in a Hanafi madrasas and contemporary adaptations of classical law I make apparent the ‘imaginary configurations’, ‘metaphoric networks’ and points of tension through which the texts convey ideas about the woman of Islamic law.» (p. 5)
Questions/Hypothèses : «I examine how the text envisions the woman addressed by the law by asking about the normative person of Islamic law and how this person differs (if indeed) from the female legal person?» (p. 18)
Échantillon/Matériau : L’auteure utilise des textes de droits islamiques contemporains ou classiques.
Type de traitement des données : Réflexion critique
«In the complex formulation of the female legal subject I find that classical Ḥanafī legal theory does not explicitly distinguish female legal capacity from male legal capacity; femaleness does not feature amongst the nineteen impediments to legal capacity. Nonetheless classical legal theory and positive law both distinguish between male and female legal subjects. […] Contemporary legal theory, contrary to its classical precursor, either imposes severe restrictions upon women as legal subjects or pretends to the absence of distinction between female and male legal subjects. The pretense denies the differential treatment of women in the law while the restrictions result in a category of ‘imperfect legal capacity’ for women. […] However, both historical and modern approaches occlude the obvious impediment to legal capacity that marriage effects on female legal subjects, notably limitations on a wife’s legal capacities within the marriage and the marital authority of husbands to manage the sociality, mobility, and spirituality of wives, ownership of the marital bond being a uniquely male legal capacity. Finally, contemporary legal theory frames inflexible determinates of female legal subjectivity and eventually produces essentialist and existential understandings of women. This illustrates the modern representation of women’s legal capacity as not merely a modern manifestation of historical legal thought, but indeed modern in its origin and formation.» (p. 5-7)