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

Abstract

Various studies have discussed the anafī opinion about the ownership of agricultural land. In this study, instead, I analyze the Mālikīs’ and Shāfiīs’ views. Their madhhib 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 Shāfiīs to divert from the standard doctrine of their madhhib. 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 Shāfiīs, which stands as an antithesis to the anafīs’ development, stimulates us to think of a different mechanism of ijtihd. In this mechanism, Islamic law reform is defined by questioning and challenging the contextual reality (wqi) instead of being adjusted to it, even if this reality is not prohibited.