Could Women Own Agricultural Land? Rethinking the Relationship of Islamic Law and Contextual Reality (Wāqiʿ)

Abstract

Various studies have discussed the Ḥanafī opinion about the ownership of agricultural land. In this study, instead, I analyze the Mālikīs’ and Shāfiʿīs’ views. Their madhāhib suggested that arable land was in the public ownership of the state. However, I show how the systemized deprivation of women from inheriting agricultural land in the Ottoman period motivated late Mālikīs and Shāfiʿīs to divert from the standard doctrine of their madhāhib. Late scholars suggested that Egyptian land should be owned by the cultivators, and, therefore, be inheritable by both men and women. This turn of late Mālikīs and Shāfiʿīs, which stands as an antithesis to the Ḥanafīs’ development, stimulates us to think of a different mechanism of ijtihād. In this mechanism, Islamic law reform is defined by questioning and challenging the contextual reality (wāqiʿ) instead of being adjusted to it, even if this reality is not prohibited.