Analogical Reasoning (Qiyas) and the Commodification of Women: Applying Commercial Concepts to the Marital Relationship in Islamic Law

Abstract

Analogical reasoning (qiyas) is one of the four sources of Islamic jurisprudence. It is recognised that the outcomes of qiyas are generally speculative in nature. However, a vast portion of the corpus of Islamic law is derived based on qiyas. One such area is marital relationship and mutual rights of the spouses. In several areas of marital relationship and mutual rights, the Islamic jurisprudents have applied concepts and tools that are related to commerce or business (tijarah). Such terminologies include bay’ (exchange/buy/sale) and ijarah (lease). This article examines such employment of business-related framework in the area of marital relationship and mutual rights. Based on both classical and post-classical legal sources, the author analyses the legalistic tendency underlying the legacy of the traditional Islamic law, as exemplified in using business-related framework in an overreaching manner. This article also offers an explanation of how the traditional Islamic view on slavery might be closely connected to this commodified view. Furthermore, it sheds light on how such commodification can impact on family as a central social institution.