Ep. 13 | The Ties That Bind: Child Custody in Andalusī Mālikism, 3rd/9th to 6th/12 c. | Dr. Janan Delgado

Episode 13

Release date: December 19, 2022

Hosts: Harry Bastermajian and Meryum Kazmi

Audio editing: Meryum Kazmi

Audio elements: "Al Andalus" by Shane Ivers via Chosic

Photo: Cordoba Mosque by Gabriel Trujillo via Unsplash

Transcription: Otter (modified for readability)

Harry Bastermajian 00:06

Welcome to the Harvard Islamica Podcast. I’m Harry Bastermajian,

 

Meryum Kazmi 0:10

and I'm Meryum Kazmi. We're excited to be joined by Dr. Janan Delgado, who recently earned her PhD in the Study of Religion at Harvard University, and won the 2022 Alwaleed Bin Talal Dissertation Prize for her dissertation entitled, "The Ties that Bind: Child Custody in Andalusian Malikism, 3rd/9th to 6th/12th centuries." Welcome, Janan and congratulations.

 

Janan Delgado 0:35

Thank you so much for having me. Thank you, Harry. Thank you, Meryum. It's my pleasure to be here today.

 

Harry Bastermajian 00:41

It’s a pleasure to have you here today, Janan. To get us started, can you tell us about your background and what led you to Islamic studies, and then specifically, the study of child custody in Andalusi Malikism?

 

Janan Delgado 0:56

Sure, so I come from a tiny Muslim minority in Ecuador. Very, very small. When I was growing up in Ecuador, I was born and raised in Ecuador, and our community, our local mosque had maybe 50 to 60 people. Very, very small. But I was raised Muslim, and my parents sent me to Egypt to college when I finished high school in Quito. And I also come from a very devout family, devout Muslim family. And they wanted me to study Islam. But you know, that age, I was pushing back. And I said, you know, "I'm going to study political science. I'm not going to become an 'alima or shaykha, or anything like that." So I insisted on political science. And then I got a scholarship to go to NYU to study Middle Eastern studies. And again, I thought I was interested in political science. But when I went to NYU, I found myself trying to look for all the Islamic studies course offerings that were available. And I felt I was very, very curious about Islamic studies, very curious about the tradition, less interested about political science. So after taking as many options, as many Islamic studies courses as I could at NYU, then I realized that that's really what I was interested in, and that that's what I should pursue at the PhD level. I wanted to understand the legal tradition, I think, in particular, how it evolved over time. And that's how I ended up with Islamic studies. Now for custody and hadana, I was taking a course on childhood in the Middle Ages at NYU. And the sources are so scarce for the Middle Ages and studying childhood in particular, that the professor suggested I look at fatawa. And when we were discussing, we read an article about child custody law in class and one of the major rules in the four Sunni madhahib regarding custody has to do with a mother's loss of custody in case of remarriage. So she has a primary right to custody, unless she marries again. And I remember when the professor explained this rule, there was, I believed a little bit of a palpable dismay in class about the fact that a woman would have to choose between being married again, having that part of her life fulfilled, and keeping her children. And was this another example of a case of misogyny or discrimination against women in Islamic law? That was a conversation in class. But I remember having a very different experience. I remember hearing that rule from the perspective of the child. And it was different than what I saw in the classroom, where the concern was primarily on the mother and women. And I felt well, how does the child feel about sharing potentially his mother and his home, her mother in her home, with a complete stranger? But it seemed that the conversation, it seemed that the sources weren't capturing the experience of the child and so I became very curious to understand why we weren't focusing on the child more, and that that was a part of the story that wasn't being told. And that led me to custody, and I was all the more intrigued when I saw that there was almost nothing written about custody, that there had been an explosion of works on marriage and divorce in Islamic studies and nothing on custody. Literally, a few articles I could count on my hand. No monograph-length study on custody ever published in the English language in academia, I mean, at least in recent decades. And I thought, "How is this possible? Isn't custody such an integral part of the conversation, especially when there's so much on divorce? What happens to the children? Why is there such a lacuna here?" And that was a case until 2018 When Ahmed Fekry Ibrahim published his work on child custody law in Egypt. And so far, it's the only other study I know of on custody, his and my own now. So that's really what led me to this topic.

 

Meryum Kazmi 06:04

That's very interesting. Thank you. So to get more into your dissertation now, what time periods did you look at and what led you to do this longitudinal study of the Maliki school and its classical legal texts?

 

Janan Delgado 06:20

Yeah, so I focus on the ninth to the 12th century in Andalusi Malikism. Originally, my dissertation was supposed to go from the ninth to the 15th, I wanted the whole span of al-Andalus, from its formation until it ceased to exist as a polity, with the fall of al-Andalus. And my chapters were organized in that way. And then along the way, I realized that I would only be covering what I call the first and the second period of Andalusi Malikism, and the third, I would not be able to cover because of space limitations in the dissertation. So I call the first century, the ninth and the 10th. The first period, excuse me, is the ninth and 10th. The second period is the 11th, and the first half of the 12th. And then the third period, would be the 13th, 14th, and 15th. But I don't get into that. So I'm talking about four centuries, again, nineth to the 12th. And why a longitudinal study? Initially, I think, mostly because I wanted to understand change over time. And with the fiqh sources, you have to be looking at a long, long period of time to be able to track very subtle changes in the law. And I really like how Professor Marion Katz at NYU, has described the choices that a scholar has. Basically, she has said that there are two choices that we have when working on the fiqh. One is a transverse slice approach to the topic and the other one is a core sample. When you take a transverse slice approach, you have one topic and you look at several sources in that one period that you focus on, or you can do a core sample approach, which, you know, she borrows the term from geology, which has to do with, you know, when geologists would draw these very long poles from the polar caps, and they would be very narrow in diameter but very, very long. And by looking at this very long pole, you notice very subtle environmental changes. And that's what we're doing as historians of Islamic law when we're working with fiqh with this approach. And in fact, you don't actually know when you start your research if you're going to find any change at all, you know, which for a young PhD student is worrisome because you feel that you need to prove the existence of change, and there's definitely a bias and a positive valuation of legal change in academia, over legal stability, which I also get a little bit into my work, but basically, that was the reason why trying to track very, very subtle changes over time.

 

Meryum Kazmi 9:31

And what can your methodological approach offer in terms of social history in this study of classical legal texts?

 

Janan Delgado 9:41

Yeah, so scholars of Islamic law in the pre-modern period note that the sources are not what we would want them to be prior to the Ottoman period. Court cases are hard to come about and it's difficult to see what exactly happened and to prove, for example, that this is the way custody was practiced in al-Andalus during this period, especially during the first and the second period. If I had gone up all the way to the third, as was initially my plan, there's much more material for the third period, more fatawa collections. For the first and the second period of Andalusi Malikism, basically, you're working with normative legal works, a few court cases, a few fatawa. But I believe honestly, that you know, the fact, as Janina Safran, the historian Janina Safran has noted, actually, she said the fact that Andalusis are collecting this legal material, taking the trouble to go to the east to learn it, to transmit it, to use it, it means it was socially relevant to their time. They're not doing this just as an intellectual exercise. In fact, many of the jurists I study were practitioners, they were judges, they were closely attuned to the reality of their times. They were dealing with real court cases. So when they are writing a practical manual, even if it's normative law, for how custody should be organized, they are doing it because they are dealing with real court cases. And they're dealing with real problems. So that is one aspect of it. So definitely, yes, you can mine the sources, even for your sources for an idea, or at least an approximation of social practice at the time. And at the same time, obviously, you're also studying the jurists' perspective of their time, our social history of the jurists themselves. How did they view, as I mentioned in my dissertation, the fact that they were discussing dry custody rules was sometimes an occasion for the articulation of ideas regarding womanhood, manhood, motherhood, step-fatherhood, very interestingly, where else are you going to see how these jurists from the ninth and 10th and 11th centuries thought of stepdads? It's very unique material. So you're seeing society through their eyes, and, I think that's worthwhile as well. It's a piece of the history for sure.

 

Harry Bastermajian 12:24

What was the state of the Maliki school in al-Andalus during the period you studied and what were some of the intellectual currents it was in conversation with?

 

Janan Delgado 12:35

Thank you so much for that question, Harry. You know, I knew I wanted to study custody in al-Andalus and situated within Andalusi Malikism. And I started to research as much as I could about Andalusi Malikism to be able to situate my work, and I found that there was, again, not enough written on Andalusi Malikism and that Malikism as a school of law, and how much it's been studied, I feel, is lagging behind the study of Hanifism, the study of Shafi'ism. Malikism, I feel, is lagging behind. There are some important works for the first-- for the Medinan period, for the early period; less so for this period between the ninth and the 11th and the 12th century. And I think that is something that you can observe and that has been noted about, for example, a notable work like Christopher Melchert's The Transformation of the Sunni Schools of Law, between the ninth and the 10th. A few scholars have noted that the least robust chapter is the one on Malikism, the other chapters have a lot more to offer. In fact, and Spanish historians mentioned when they saw the book that it didn't really offer much to what they already knew about Andalusi Malikism. And there's certainly this disconnect between Spanish scholarship and American scholarship of al-Andalus that I mentioned as well in my work, and you have to go to Spanish scholarship to understand the state of Andalusi Malikism. You have to, which requires access to sources in Spanish. There's a reason why there's a disconnect very often the languages that are required in American Middle Eastern Studies programs Islamic studies programs, are German and French. So, as a result, there is a language barrier here to the sources. So Professor Maribel Fierro, Manuela Marin, Carmona Gonzalez, a few Spanish scholars have published very important work that you have to refer back to understand what was happening. And very briefly, what I would say about this period now, from primarily the work of Professor Maribel Fierro, is that between the ninth and the 11th and early 12th century, there are a number of very important developments. You have to remember that al-Andalus has started in the eighth century, as a polity that-- you know, it was it was conquered in 711 by the Muslim Berber commander, Tariq ibn Ziyad, who arrived to the peninsula with his army. So this is happening in the eighth century, and legal practice during this first century of al-Andalus responds primarily, it seems, to the needs of the military class that was ruling al-Andalus. And there's very little for that eighth century, so I leave it out of my studies. Also, it is said that Andalusis actually initially followed the teachings of al-Awza'i and not Malik. So that is the first century that is not in my work. Now starting in the ninth century, which corresponds to the third century of the Islamic calendar, you have the teachings of Malik arriving to al-Andalus through something called sama's, which means private notebooks. You have students of Malik bin Anas bringing the teachings of Malik through these notebooks that begin to spread in al-Andalus. The Andalusis were very interested in the teachings of al-Malik, they consulted these private notebooks. And, of course, they didn't all correspond to one another because, you can imagine how they were produced. Students are sitting around the teacher, you're taking your notes, and of course, they're going to differ from one student to another student. So Malikism was not homogeneous during the ninth century, you had many different versions during the nineth century. The work of Sahnun ibn Sa'id, the Mudawwana, on which I rely heavily, enters al-Andalus. Again during this century, during the century in which it was produced, it was already in al-Andalus. The Muwatta’ of Malik as well, enters al-Andalus during the ninth century. And during the ninth century, the Muwatta’ is also compiled, the Mustakhraja of the Andalusi jurist, Cordoba jurist, Muhammad bin Ahmad al-'Utbi, who died in 869. So in the Muwatta’, this is also important to understand, he collected these private notebooks, he organized them and then he produced his one work. So at the same time, these private notebooks become obsolete, because now you have the Muwatta’ that you can consult alongside the Mudawwana, alongside the Muwatta’, these become the three main sources of Islamic legal knowledge for Andalusis. Importantly also in the ninth century, hadith material begins to arrive in al-Andalus because, don't forget, Andalusis from the beginning, they are mostly interested in Malik's legal opinions. And their main source of knowledge was it was masa'il, it was through masa'il, it was through questions and answers posed to the teacher on any range, number of questions. Hadith entered secondarily into al-Andalus during the first half of the ninth century, with people going to the east and studying it and bringing it and by the middle of the ninth century, second half of the ninth century, it in fact starts to cause problems in al-Andalus. And the people who had, who believed that the way to understand the law, the most authoritative way to understand religion and the law was through opinions of Malik and his reliable students, resented the introduction of hadith, particularly when it didn't match how they were practicing religion, how they were practicing the law. So Andalusis did not appreciate that, they begin to persecute. In fact, in the second half of the ninth century, the traditionalists ahl al-hadith, they are persecuted, they are expelled the local jurists who don't appreciate that way of doing Islamic law wanted to have them in jail, and, in fact, sometimes the Andalusi Malikis succeeded in getting them banned, in getting them in jail, the ahl al-hadith. By the end of the ninth century, as Maribel Fierro notes, they, the students of Malik, whom she calls proto-Malikis, are not Malikis, they in fact coalesce in a madhhab spirit in opposition to the traditionalists, in opposition to the ahl al-hadith. And that was one of the major results of the challenge of hadith. So this is ninth century; quickly 10th century, Malikism is 100% successful, it becomes the official school of al-Andalus, which corresponds to the proclamation of the Umayyad Abd al-Rahman III as caliph, and he turns officially Malikism into Andalus's school. So that's then, and then 11 and 12, which is the last period that we study in my work, that is where the traditionalization, or reform, of Malikism happens, which, when the Malikis, Andalusi Malikis, begin to actively engage with hadith material, they understand that you can no longer turn a blind eye, that you cannot longer ignore the appeal of Shafi'ism, of the usul, of his legal theories, and hadith. So in the 11th and 12th century, you have figures like Abu al-Walid al-Baji, Ibn Abd al-Barr, and others, who marry Andalusi Malikism with hadith and with usul, and reform it, successfully reform it. And this, I have to say, this outline and this general idea of the progression of Andalusi Malikism is thoroughly studied by Professor Maribel Fierro and she's the main reference for this historiography in an article that I think is worth mentioning, "Proto-Malikis Malikism, Reformed Malikism in al-Andalus," published in 2005.

 

Harry Bastermajian 21:26

Thank you, Janan. In addition to the Muwatta' of Malik, Ibn Sa'id's Mudawwana, and al-'Utbi's Mustakhraja, what other legal works did you study for your dissertation?

 

Janan Delgado 21:39

Yes, yeah, thank you. So the legal works that I choose for my dissertation, they follow closely the developments that I just outlined. So for the first period, it is then when the Mudawwana, the Muwatta’, and the Muwatta’. For the second period-- and also, I end with al-Nawadir wa-l-ziyadat of Zayd ibn Abi Zayd al-Qayrawani-- and I think it's also important to note, I didn't mention this before, it may not be of use to our readers, that-- to our listeners-- that al-Nawadir wa-l-ziyadat and the Mudawwana are authored by jurists from Qayrawan. And they're not from al-Andalus. And that is another thing that I should mention, that when you're doing a history of al-Andalus and the fiqh, I choose works that were either produced by Andalusis or were highly influential in al-Andalus. And that was the case certainly with the Mudawwana and the Nawadir wa-l-ziyadat. And that is why the history is porous. You cannot just contain it into one geographical space. In fact, the jurists traveled, knowledge traveled, and there was a very deep connection between Qayrawan and al-Andalus. And that's why the source of texts that I use in my dissertation reflect that porous nature of Andalusi Malikism during the centuries. So again, that's for the 10th century, Nawadir wa-l-ziyadat, and then for the 11th and early part of the 12th, Kitab al-muntaqa of Abu-l-Walid al-Baji, Kitab al-kafi of Ibn 'Abd al-Barr, al-Bayan wa-l-tahsil and al-Muqaddimat wa-l-mumahhidat of Ibn Rushd al-Jadd as well as one fatawa collection, al-Ahkam al-kubra of 'Isa b. Sahl, which also thankfully, contains a few court cases. [Dr. Delgado’s sources also included Kitab al-nafaqat of Ibn al-Rashiq and the Muhalla of Ibn Hazm.]

 

Meryum Kazmi 23:43

Thank you. So to get into hadana, can you tell us, what is the institution of hadana and what are its basic rules that we should be aware of, as outlined in the Mudawwana of Sahnun, that were being implemented?

 

Janan Delgado 24:01

Hadana refers to the protective care and immediate charge over a ward. In English, we commonly translate hadana as child custody. I use this term in my work as well, but I should clarify at the outset, that the term hadana corresponds more accurately to what we think of in American law as physical custody, whereas legal custody is more akin to another institution in Islamic law called wilaya. Pre-modern Muslim jurists were not overly concerned with the precise distribution of legal and physical responsibilities of parents towards their children as long as the marriage lasted. Parents were actually given some freedom to look after their children and distribute roles and responsibilities as they best saw fit. However, in the event of a divorce, or death of one or both parents, jurists distributed the rights and responsibilities of wards and caretakers very clearly and within that distribution, physical custody hadana, was largely but not exclusively assigned to mothers and their female cognates, whereas legal guardianship was primarily assigned to the father and his agnates, primarily male but not exclusively, also female as well. So that's wilaya and hadana and my dissertation doesn't deal with wilaya, with legal guardianship, and it features only tangentially. So to speak about hadana more specifically, the Mudawwana of Sahnun establishes very clearly and unambiguously maternal priority. In the event of a divorce, a child remains under the physical care of the mother; until puberty in the case of males and until marriage in the case of females, whenever that is, that can take a very long time. During the period of hadana, a father, or subsequent guardian, wali, is financially responsible for his children and he must remain in touch with them and oversee their affairs. Jurists mentioned explicitly things like children's education and discipline. And wards may spend time with their fathers outside the maternal home, especially to have the rights fulfilled, say for example, if a father, they mentioned if a father has to teach his son a trade, for example. However, they must be returned to the mother at day's end. That is both the right of the child and the mother as well. This maternal priority in custody does not only apply to Muslim women in the Mudawwana. They, according to Malik, in the Mudawwana of Sahnun, Jewish, Christian, Zoroastrian women are on the same rank as the Muslim mother, they actually explicitly use those terms, "on the same rank." And, what is more, unlike other Sunni schools, the Malikis also extend this maternal priority to slave mothers. And they place legal limitations to the separation between a slave mother and the slave child, regardless of the mother's religion. So, in regards to the boundaries, or limitations to custody, first and foremost, is lack of security and aptitude. So the Mudawwana states that any adult who shows themselves to be incompetent, irresponsible, is disqualified from custody. Any adult who puts the children in harm's way is disqualified from custody. So kifaya, the term they use for aptitude is kifaya and it occurs many, many, many times in the text. This is an absolute must. And then there are two that are more specific to a female custodian having to do with travel and remarriage to a nonrelated male. In regards to travel, because of guardianship responsibilities of a father towards the child, jurists held that a ward can obviously physically be separated from the father, and the distance Malikis mentioned is six barids, which, for our purposes just means that the father should not be away from the child in a distance that would not allow him to fulfill his guardianship duties towards the child. And now of course, obviously, for people who are thinking of present times, with technology and easy travel, things are a little bit different. Back then they established it to six barids. And if a father relocated, Malikis obligated them to take the children along with them. But this didn't mean that mothers or subsequent custodians necessarily lost custody. Rather, they had to be given the option to relocate with the children. And in fact, I read a fatwa for the third period, which I don't cover in my dissertation, but in that fatwa in the Mi'yar, there was a dispute between a father and a maternal grandmother and he wanted to relocate to a different town to remarry. And he thought he was free from all guardianship responsibilities, because he was traveling. And the mufti actually told him that he had to take the children with him. And they were under the care of the maternal grandmother, his ex-mother-in-law, and now he had to, even as he's traveling to remarry, he has to take the children and he also potentially has to take his ex-mother-in-law with him, which is inconvenient I think for every party, for the father, certainly as he's going, this man is going to marry, going to his new bride. He's not left off the hook. He has to take the children, he has to take his ex-mother-in-law. And it's inconvenient, obviously, for her to move as well. But the jurists were thinking of the best scenario for the child, the best of both worlds, and they didn't have a problem inconveniencing the adults around them. But more significantly, the biggest impediment to custody or the biggest boundary to custody is a mother's remarriage to a non-related male. Any mother or subsequent female custodian who marries an ajnabi, or a stranger to the child, loses custodial priority. We're going to discuss that later when we, I think, discusses stepfathers. But importantly, in the event that remarriage or a father's travel causes a mother to lose custody, this is not lost in favor of the father, as one would assume, you know, just thinking of modern times and the nuclear family; rather, custody devolves to the next woman in the custodial tribe of mothers, that is to say, to the mother's mother then to the mothers aunt, and so on and so forth. One final thing I want to say in regards to this question is that, although this is, in broad sketch, the distribution of parental responsibilities Malikis established in the event of a divorce or death of a parent, they fully, Malikis that is, fully recognized and sanctioned private agreements between the parties that could depart from these guidelines.

 

Meryum Kazmi 31:54

So the institution of hadana is viewed by some scholars, as you touched on earlier, as being an institution of male domination, while others have considered it to be a complex quote unquote, matrix of rights and responsibilities with the child at the center. So how do you interpret the role of gender power dynamics in this study?

 

Janan Delgado 32:20

This is an interesting question, Meryum. When I was doing my initial background research on custody, I noticed that some of the secondary literature suggested that hadana was a female-dominated sphere in Islamic law whereas others looked at some of the restrictions and limitations imposed on custodians that I just mentioned, and concluded that this was ultimately another example of male domination in Islamic law. I certainly noticed that there, that a lot of the literature on gender issues in Islamic law was very concerned with power disparities between women and men, and that they tried to identify overt or covert forms of discrimination against women in the law. What is more, I think there seems to be a generally shared assumption that because Islamic law had evolved in patriarchal social and political environments, it had to necessarily be biased in favor of men. And that therefore, the sometimes explicit, sometimes implicit, job of the researcher was to identify built-in inequalities and biases so that hopefully correctives could be developed and implemented beyond the academy. And I mean, as a side note, by the way, I agree with Saba Mahmood when she states that feminist scholarship has a dual character as both an analytical and politically prescriptive project. But that's a story for another day. As a graduate student, I noticed these trends, but frankly, they left me a little bit dissatisfied. I actually suspected that the feminist imperative to diagnose power imbalances between women and men had something to do with the fact that the interests of the child had remained somewhat invisible in the literature. And I imagined that this could be because within what I would call an adult-centric man-woman binary, a dichotomous lens of the world, there hadn't been much room left for a third party, whose rights and interests do not fit neatly into that two-sided analytical lens. Because you know, Meryum, anyone with some familiarity with custody disputes, would understand that neither the agendas and interests of the father nor the agendas and interests of the mother are perfectly synonymous with the interests and agendas of the child with the interests and desires of the child. They're just not. There's a depth and richness and complexity to custody that, in my opinion, could not be appropriately captured through an adult-centric male-female lens. And, I mean, one can certainly ask, whereas one can certainly ask how gender power dynamics play out in custody law, this would only reveal a tiny sliver of the larger story I wish to tell in my dissertation. I think I wanted to be careful not to bring in a theoretical framework with a predictable range of concerns and assumptions into these pre-modern sources. I wanted to see what questions would emerge from the sources themselves, and I think they did take me into many diverse, interesting places I could not have anticipated or predicted myself. But this doesn't mean that I don't discuss gender power dynamics at all. In my first chapter, I tell the story of how the custodial tribe of mothers in fact functions to preserve physical custody in the hands of women and how without it, a mother could more readily lose it to the father and male magnates, for sure. Hadana is certainly a very interesting sphere in the law, I mean, one where we see our pre-modern Maliki jurists take very seriously the experiences of women and children, and even their emotional interests. They mention the pain of the mother, they mention the pain of the mother of Moses when she had to place him on the crib, and they use that as an explanation for why mothers have maternal priority. They certainly were attuned to the emotions of women and these are ninth century, 10th century, 11th century jurists who I, even myself as a mother reading, I was a mother of a toddler and then a baby while writing the dissertation, and to see them so attuned to the pain of mothers, talking about the mother of Moses and Mary was very touching. So definitely a very interesting topic to think about gender as well.

 

Harry Bastermajian 37:22

Why did you choose to name the women custodians in the Maliki law of hadana the “tribe of custodial women,” and how does this tribe fare in the second period of Andalusi Malikism?

 

Janan Delgado 37:38

Yeah, so I realized that the word tribe can be interesting. It is not a word that occurs in the sources. So I had to think many times before introducing a word that is not used in the sources as an interpretive metaphor of what is taking place. I wanted to stay very close and very true to the sources. The reason why I use the word tribe is because a tribe is an imagined community. And I like this definition by an author by-- her last name is Beck, I don't remember, I'm blanking on her first name-- but she said that a tribe is an imagined community organized according to principles and processes of kinship, marriage, co-residents, economic and political association. And that membership in a tribal community has historically offered benefits and advantages to tribe members that others who were not in tribes didn't possess, for example, peasants. So I realized when I was studying custody, and I noticed how there are all these women who have custodial priority before men. Mothers, maternal grandmothers, maternal aunts, maternal great grandmothers, maternal great, great, great grandmothers have priority over men, that they in fact formed a group with a common social goal, namely, the caretaking of a ward. Membership in this tribe was based on well-defined principles such as constant gain or uterine bonds to the ward, to the child. The women were placed in a system with clear rankings and clear rules governing custodial hierarchies that you could not skip. So a woman comes with a mother, comes before her mother, who comes before her mother, who potentially can't be for the and maternal aunt. So there is a hierarchy within this custodial tribe of women. There are principles that govern who can be in this tribe who cannot be on this tribe. Members are not excluded by religion. So you may have a custodial tribe of women around the child with a Muslim mother, a Christian maternal grandmother, and they're there, regardless of religion. They're there to care for this child, who now, after the dissolution of marriage, or death of one of the parents, death of the mother, needs care. And all these women come together with priority over the caretaking of this child. So I felt it was a very apt word for what I was seeing. And it was very interesting. It can be a cohesive group. And as I mentioned, in fact, what happens, this ties back to the question of power a little bit, is that it preserves custody in the hands of the tribe. So for example, as I mentioned, although there's this firm rule, that a woman, that a mother, who remarries loses the right to custody. It goes to her mother, and then it goes to the another woman in the tribe. So custody stays in the tribe. If you don't pay attention to the existence of the tribe, you think that women very quickly lose their priority to custody in favor of the husband and in favor of the male magnates, whereas in reality (?), she belongs to this group of women bound together by the ties of the womb, which is a very, very strong bond, and connects both women to one another, as well as all these women to the child. And a child is not born to one mother, in reality, not in pre-modern Islamic law, not in Andalusi Malikism; a child is born to many mothers. A child is rich and wealthy in a way that he's, she's born to many mothers; to her mother, to her aunt, to her maternal grandmother. And they all should function as mothers. And that is how the tribe works, how it fares in the second century-- in the second period, I'm sorry-- it actually strengthens, it becomes stronger in the second period. It does not-- I know some people have noted how women's power and rights devolved as centuries progressed, but actually in hadana, the tribe becomes much stronger, much bigger. Whereas initially you had four or five categories of women, in the second period and under the pin of Ibn Rushd al-Jadd, you have multiple categories of women, which could place a father 35th, or 42nd in custodial priority after the tribe. So definitely, and it definitely raised eyebrows, by the way, among the other madhahib. What's going on with the Malikis? Why all this priority to women and father is 35th? And then the Malikis had to defend themselves. And in the second period, they did that in reference to the Quran and to the hadith because, obviously, in the second period, these are sources of the law that had to be introduced, particularly in polemical defenses of their position.

 

Meryum Kazmi 42:56

Can you talk a bit more about the basis for the rulings of the Maliki jurists and how they viewed the social phenomena around them and how they how their observations related to their use of reason versus scriptural evidence to derive rules around custody?

 

Janan Delgado 43:20

Yeah, as I mentioned for Andalusi Malikis, in particular, during the first period, it was enough to establish that this was the opinion of Malik. And in the Mudawwana, you have Sahnun asking, Ibn al-Qasim, "What is the opinion of Malik in regards to women's priority? When does it end? When does it not occur?" And Malik gives his answer. And at the beginning, that seems enough for the Andalusi Malikis, but as I mentioned, with the influx of hadith and the influence of Shafi'ism, the Malikis now had to defend this maternal priority in custody in reference to hermeneutical material in the Quran and the hadith. And also, on their observation, so in Abu-l-Walid al-Baji and, I mean, you certainly see, you certainly see them saying, "We have observed that women tend to be kinder to the child, we have observed that they tend to be more patient, they're more patient and kinder to the child." And that means, on the one hand, that they openly recognize the role of social observation in justifying the laws of custody. On the other hand, they also base it on hadith. So for example, a very famous hadith is the one where Abu Bakr, actually-- 'Umar ibn al-Khattab finds his son playing in a mosque. And he was running around-- you can imagine 'Umar ibn al-Khattab and his very imposing, very strong figure arrives to the masjid, finds his kid outside the masjid being rowdy and playing. And he's saying, "Who's taking care of this kid right now?" And he was with his maternal grandmother who had custody of the child. And this is after he had separated from his wife. And then he grabs the child, 'Umar ibn al-Khattab grabs the child, puts him on his mount, and starts riding away on his horse with the child and the maternal grandmother starts chasing after them and saying, "Give me the child, give me the child" and 'Umar just rides away and then they end up in front of Abu Bakr. And they present the problem to Abu Bakr and Abu Bakr tell him, tells 'Umar ibn al-Khattab, "Do not get in the way of this child--" Oh-- and he, 'Umar ibn al-Khattab says, "This is my son." And the maternal grandmother says, "This is my son." And then Abu Bakr says, "Do not get in the way of this mother and this child-- of the maternal grandmother and the child" and he awards custody to the maternal grandmother. This is a very well-known hadith, it is found in the Muwatta of Malik. So the Malikis had the source material to say, look, custody should go to the maternal grandmother, after the mother, as clearly happened with a case of 'Umar ibn al-Khattab, such an imposing figure, powerful figure in Islamic history. And even he couldn't get his way with his kid, he couldn't say, "I'm just going to grab the kid," because custody was there to protect maternal priority. And not just for the mother, but for the maternal grandmother as well. So the Malikis, particularly on the second period, Andalusis note that there is hermeneutical material that is backing up these rules, as well as social observations, which some people find questionable. But by the way, they didn't think that women were across the board kinder and that they were unequivocally, and without exception, better caretakers. And in fact, one of the conditions of custody is aptitude. And it applies to both women and men, and women could lose it, and men could lose it. And if she was not an apt caretaker, she would lose custody. And also she could refuse custody. So if one of the women in the tribe, because I know when people read this dissertation, or even when they hear me speak, I know some listeners are going to think, "Well, women are being cast as kinder so that the brunt of child care work is dumped on them," but in fact-- or that she's not given a choice but to care for the child-- but in fact, Maliki law gave women a choice. And if she didn't want to play the custodial role, then she could just give up that priority and he would go to the next woman in the tribe. So it's not that they were stuck with a role they potentially didn't want. They understood that that was harmful to the child as well. They weren't going to force somebody to care for somebody they didn't want to care for.

 

Meryum Kazmi 48:28

Thank you. So to get more into changes that take place in the second period, how did the rules regarding the limits on a mother's custody change in that second period and what was the new discourse around stepfathers?

 

Janan Delgado 48:47

Yes, so I mentioned that in the Mudawwana of Sahnun, there is a very firm rule where a man who remarries-- a woman who-- a mother who remarries loses the custody, her custodial priority. That seems to be a very strict rule in the Mudawwana. The only exception is with a maternal grandmother if she's married to the maternal grandfather, so she's married to the grandfather of the children, then the maternal grandmother doesn't lose custody. That's all the Mudawwana mentions. However, as we move to the second period, with Abu-l-Walid al-Baji, Ibn 'Abd al-Barr, Ibn Rashiq, I mentioned-- I forgot to mention I used as well Ibn Rashiq's Kitab al-nafaqat, which is a much less known work, but he was an important Andalusi jurist of his time. As we move to that second period, the rules become a lot more qualified. So it becomes clear that it's not just the exception of the maternal grandmother being married to the maternal grandfather of the children, but rather is any woman who's married to a wali of the child. So a mother or any woman who's married to a guardian of the child, a legal guardian of the child, doesn't lose her right to custody. Any number of male relatives of the child from the father's side is a guardian, a wali. His brothers, for example, and others as well in his family are guardians, so if she marries one of them, then she they unequivocally, the Malikis say, she doesn't lose the right to custody. They also-- there are exceptions regarding when she will lose the right to custody, how now, all of a sudden, there is a need for a court order. She doesn't lose custody as soon as she remarries. It takes time. She may actually keep custody if her mother has custody and they're living in the same house. So technically, practically speaking, she doesn't stop living with a child, that just custody, in theory, goes to her mother, but if they're co-residents, some Malikis say she can keep custody. Also, if she's able, for example, to provide separate quarters, private quarters to the child, to the children within her home, to provide them with separation and independence from this unrelated male, then there is some considerations about her being able to keep custody. So these rule becomes much more qualified, in my opinion, in my reading of the sources of the way it seems, in the Mudawwana, in the early period. And yeah, that might have responded to practical needs, of course, in families, where it's not always the case that many people are going to be willing to care for your child and a mother might have had to keep the custody. And jurists potentially had to be a lot more practical that she will have to keep the custody even if she's married, but then they try to safeguard the child as much as they could and the child's interest.

 

Harry Bastermajian 52:00

What are the two visions of custody in the second period that you identified and what is the role of religion and morality in these two visions?

 

Janan Delgado 52:10

Yeah, so Ahmed Fekry Ibrahim, in his Child Custody in Islamic Law, he mentioned that in pre-modern Islamic law, there's a lean concept of child welfare and broader concept of child welfare in Islam in pre-modern Islamic law. And I found in my own work that something similar was happening in regards to custody, that there is a narrow understanding of custody and a broader understanding of custody within Andalusi Malikism. The narrow understanding of custody is that we are going to provide the child with her very basic needs, physical care. And as long as she's well taken care of by the mother, for example, then the mother is going to keep custody and there's a strong emphasis on physical care, protection, safety, big considerations in the early period for custody. However, as we move to the second period, I find within Andalusi Malikism, that we're moving to a broader and richer and more extended definition of custody where physical care is no longer enough. And there are multiple considerations for emotional care. Which is fascinating to see, these 11th and 12th century jurists constantly repeat that we have to look for what is kindest to the child. Rifq, hanan-- yeah, my name means tenderness-- but it is there in the sources they mentioned, they mentioned hanan, and they mentioned all these considerations for us, conditions for a custodian, which is very interesting. They were no longer thinking a child just needs physical care, even back then, in the 11th and 12th century, they're thinking the child needs love and affection and tenderness and to be treated kindly, and so we are going to see who is the kindest, gentlest to a child, particularly during her vulnerable years, the most tender years. This occurs multiple times so that the concept grows and becomes more extended about the custody and what it needs to provide. Now the other side of that, as well, that I mentioned in that chapter-- Oh, and by the way, before I move on, why do Malikis have this rule about women losing the right to custody when they re-marry a stranger to the child? They explain that within the patriarchal society in which they operated-- so how does the patriarchy work? You care for your group, which is established through agnatic patrilineal lines. There's a father and his brothers and the grandfather and the family is established through patrilineal lines and you care for your group. So the jurists felt that a man who's not related to that child by blood, or through wali-ward connection is not going to care particularly for that child, is not going to feel-- is actually going to be aggravated by that child, is going to actually find himself competing for the same person's attention with the child. The jurists said children are very needy, they need a mother's attention all the time. A husband is going to feel displaced, and a husband is going to feel aggravated by the children's excessive needs. And they felt that if the-- however, if the husband was related to the child, that they would have patience, that they would at least have mercy, because he's already related to the child. So these are all tied to these considerations about kindness, and about the emotional needs of the child. So that is part of the extended version of custody. Now, the other side of that is that in the second period, now you have morality and religion playing a bigger role in custodial considerations. And you find, or I found, Abu-l-Walid al-Baji and Ibn 'Abd al-Barr more reluctant to extend custody to non-Muslim custodians and custodians of questionable morality. And that is because they, it seems that now, a custodian not only has to care for her child's physical needs, but also for her emotional needs, but also her morality, and also her religion. So now, the fact that she's not a Muslim seems a little more problematic in the second, more extended vision of custody. Whereas in the lean vision of custody, again, it's mostly physical care, some, yes, tenderness, yes, emotional care, but morality and religion don't play as much of a role. Now, why this happens, why custody extends to include morality and religion, I speculate that it has to do with changing family patterns in al-Andalus during the second period, it has to do with a transition from a family model mostly based on agnatic relations to the child to a kindred. And that has been noted by historians of al-Andalus, as well. Jessica Coope, I believe, who mentioned that the kindred becomes more important in Andalusi family structure. And what does that mean? It means that both the father's side on the mother's side matter almost equally. Matter a lot. So now it's not only through the father's line that a child, that a person joined society, it's not only through the father's side of the family, that a person finds his place in society, it's also through the mother's side. So religion now matters more, and morality matters more. And so you find yourself with this extended vision of custody, which coexists in my opinion, never displaces the lean version. And the court cases show very scant, very-- we don't have much to show, but it shows that the Andalusi Maliki jurists continue to rule with a lean vision of custody, continue to award custody to non-Muslim women, and morality doesn't feature much.

 

Meryum Kazmi 59:03

Yeah, before we move on, you had also talked about the changing political landscape at that time, and the fact that the jurists assumed that a child with a Muslim father would be Muslim but that's not necessarily how things played out in that time. And this is something that is illustrated in Christian martyrologies. So I'm just wondering if you have anything more to say about the changing social circumstances and how the jurists reacted.

 

Janan Delgado 59:38

Yeah, yeah. So during the 11th century, you also have the arrival of Ibn Hazm, this towering jurist of al-Andalus in the 11th century who was a major foe of the Malikis and who was arguing against them on many, many different grounds. And Ibn Hazm was dismayed by the Maliki rules on custody. Ibn Hazm felt it was unconscionable to grant custody to non-Muslim women, given the fact that it seemed many children were not being raised as Muslims. And the 11th century is a tough time, the 11th century's a very tough time. I think it's worth mentioning that the caliphate falls in 1031 and in 1031, that gives way too many petty kingdoms, Muslim petty kingdoms fighting against each other, quarreling against each other. So you went from a powerful and robust Umayyad caliphate to now these petty kingdoms fighting each other, and then the growing threat of the Christian kingdoms in the peninsula attacking. You have the shocking fall of Barbastro in 1064, you had the shocking fall of Toledo in 1085 to Christian forces. Muslims are shocked. They're finding themselves-- and this is something well studied by Hanna Kassis, by the way, whoever wants to look into this-- the Muslims in al-Andalus are shocked to see refugees, Muslim refugees, arriving into their lands for the first time, losing very important territories. There's a power balance that's shifting in the peninsula in favor of Christian forces. Al-Andalus no longer finds itself isolated from the rest of Christian Europe. There are efforts to bring al-Andalus into the fold of Christian Europe. Muslims are witnessing many changes and Ibn Hazm probably thought, "What are you doing? What are you doing granting custody to non-Muslim women?" And I feel that he had a receptive ear with the reformers. I feel, personally, my interpretation is that somebody like al-Baji was sympathetic to Ibn Hazm's ideas. I feel that Ibn 'Abd al-Barr also had qualms against giving custody to non-Muslim women because of that. But very interestingly, they were still, they were bound by school authority in a way that Ibn Hazm was not. And Ibn Hazm strips custody away from non-Muslim women, he says it can't be done, can't be justified, whereas the Malikis continued to stick to the role of granting custody to non-Muslim women. And they tried to stay true-- I think they were very cautious to strip people of the rights that they felt had been God given in a way, right, because we were talking about the authority of Malik and the authority of the Prophet before him. They felt this was an authoritative transmission of the law as it happened in Medina, very cautious to remove rights that they felt were sacred. Ibn Hazm didn't have the same constraints, same school constraints. He could go back to the sources and say, "Listen, this doesn't make any sense," which, by the way, should be a commentary on people's sometimes unreflective positive valuation of change and ijtihad, and going back to the sources, and the negative valuation of taqlid as blind imitation. It's very, it's a lot more complicated. Taqlid, I think as Marion Katz also has noted, taqlid and innovative thinking and creative thinking doesn't always translate into more liberal freedoms and values. Actually, in this case, for people who find it favorable to extend equal rights to women, they will say where they will actually find that-- or to mothers-- that it is with taqlid, and it is with establishment, and it's with the old school jurists. They are the ones who are at the forefront of sticking to this rule, whereas the creative thinkers, without the same boundaries are saying, "No, this doesn't make any sense anymore. In the end, what should be done? What should happen? That's for the jurists to ponder.

 

Harry Bastermajian 1:04:32

You mentioned in your dissertation that beyond the academic community, you had in mind Muslims in multi-religious America when choosing multi-religious al-Andalus, as the historical context for your research. In what way do you think modern Muslim Americans may benefit from this work?

 

Janan Delgado 1:04:53

Thank you for that question. I think there's a lot to be said in this regard. Definitely it was very attractive to look at al-Andalus when I was seeing mixed religious families, even during-- throughout the centuries. Very interesting to think about something that I see around me all the time: Muslim fathers, non-Muslim mothers, children being raised in mixed religious homes, and then what happens after a divorce. So it was very interesting to find jurists thinking about questions that I think are relevant to modern Muslim Americans to think about both sides of the debate, to think about Ibn Hazm's input, to think about the Malikis' input, and how it reflects on their lives. But I think to me, maybe the biggest takeaway, and something that I hope is useful, not even just to American Muslims, but I think the Muslims everywhere living in modernity, I find the concept of a child being born to an extended tribe so beautiful. And I find the idea of a child being born to a nuclear family sad. I actually think it's a sad modern phenomenon, modern development, that a child has mostly his father and mother, her father and mother, to rely on in this life. And if something happens to them, sometimes the parents are estranged from their siblings, but even siblings don't see themselves responsible for nephews and nieces. Or, you send maybe your nephew or your niece a gift on their birthday. But more than that, so now we're talking about something very different here. We're talking about, these children are your children. These nephews and nieces are your children, you're responsible for them. And what a wealth for children to possess, that in the event of the absence of your father, you have all his male relatives to support you and in the absence of your mother, you have all her female relatives to support you. And males as well, obviously, cognate and agnate, female and male. There's this extended tribe, and I think, I think that's something for everybody to consider, to think, how do we reestablish these connections for the benefit of the child? They say that it takes a village to raise a child. This is the village. Here is the village that-- jurists assumed a village. And why do we not have that anymore? Why do children not have that anymore? And what kind of guarantees are there in place for them? The system? Going to the system in case he finds himself or herself without a father and a mother? I know women whose ex-husbands are completely absent from their children, and they worry about their children going into the system if something was to happen to them, and they wonder, who's going to care for these children? Do I want them in the system? But where are the aunts? Where are the uncles? Where's the extended family? Why do we not feel responsible for children in this way? And I think this needs to be revived. I think this conversation needs to come to the front to try to see something that was in the tradition that I think is very valuable for the interest of the most vulnerable. Same thing for the elderly; the elderly, the youth. Where's the tribe? The jurists explicitly said, "Nobody should go uncared for, nobody should be alone, nobody should be lonely," and they established institutions to care for the vulnerable and I think all of that needs to be brought back.

 

Meryum Kazmi 1:08:48

I also just had a-- I know that you haven't gotten to this point with your research, but I was, I am very curious about the later the third period of time Andalusi Malikism just because my understanding is that as Muslim political rule falls, the Maliki jurists then become very strict about the prohibition of Muslims staying in Andalus, under non-Muslim rule. And so I'm just curious to know if you know, that attitude about Muslims being under non-Muslim authority then affects their ideas of custody. Have you come across that?

 

Janan Delgado 1:09:31

So I have found and I already did some of the research for the third period earlier, much earlier. And I saw in fatawa disputes between fathers and maternal grandmothers, so we know that it was alive and happening. We know that sometimes fathers didn't know about the custodial tribe, they didn't know about the custodial rankings, they assumed that they had custody when the mother lost it. So a little bit of a gap between knowledge of the law and people's daily practice. Yeah, I mean, there were many opinions that said that they should leave al-Andalus and that they shouldn't live under non-Muslim rule. Many, many left to Qayrawan, many left to Morocco, many stayed. And it's fascinating because, actually, I believe it's Maribel Fierro who found manuals that were abridging, that were shortening the Mudawwana abridgement, Mudawwana abridgements, translated into Aljamiado, which is the language of the Muslims in al-Andalus, after the fall of al-Andalus. Can you believe that in the 15th century, 16th century, they were still referring to the Mudawwana in al-Andalus? They were still following these rules to their best of their ability, sometimes hiding. And some of these manuals were that actually translated to Spanish as well, much later. And so, I'm sure-- another thing that I know about that later period is that there is a significant shift to the nuclear family. Many men died in war. Women become more powerful, had land had power. So that shifted also family dynamics.

 

Meryum Kazmi 1:11:33

So what's next for your research?

 

Janan Delgado 1:11:37

I think I would like to complete this work. If I hadn't had the space limitations that I had for the dissertation that this would have had three or four more chapters. It did have and then I cut them out. So I think, I am excited to transform this into a book and add a couple more chapters, or three, that-- one dealing with bilateral agreements, which Malikis sanctioned. So although they established these rules, they allowed parents the ability to negotiate the terms actually. We have in our sources fathers leaving the children with remarried mothers, we have mothers relinquishing custody, although they never remarried. So they negotiated things and the Malikis, they were in touch. They were in touch with what was happening in society. They sanctioned these agreements. There needs to be another chapter on that. The dissertation doesn't have it now. And I would love to cover also the third period. So I would love to do that this coming year.

 

Meryum Kazmi 1:12:51

That concludes our interview with Dr. Janan Delgado on her prize-winning dissertation. Remember to subscribe to the Harvard Islamica Podcast for more episodes on new research in Islamic studies and follow our program on Twitter @HarvardIslamic. I'm Meryum Kazmi, thanks for joining us.