Mariam Sheibani

"Secret Marriage" is a category accommodating a range of arrangements that seek to conceal a marital union, typically from an existing spouse, the family of the bride or groom, a segment of the community, or the state. These contentious unions have seen an upsurge in recent times in Muslim-majority countries, and, more recently, in minority-Muslim communities in the West. This essay examines the phenomenon in minority communities using three interrelated lenses of analysis: the legal, the moral, and the socio-institutional. Taking this multi-faceted approach, in this essay, I first examine the legal doctrines of the four Sunni schools of law on the requirement of publicity and witness testimony in marriage before situating that legal discussion about contractual validity within a comprehensive analysis of the broader moral and religious legitimacy of entering into a secret union. I argue that while jurists stipulate disparate minimums for contractual validity, nearly all secret marriage arrangements are nonetheless considered invalid (f¯ asid), meaning they are incorrectly conducted by failing to meet the required conditions for the contract to produce its legal effects (s. ih. h. a) and are also prohibited (h. ar¯ am) in themselves or for their entailments, meaning contracting such a marriage is sinful and entails punishment. As I show, even as some jurists may make arguments that may seem to imply that some versions of secret marriage meet the basic conditions to make them technically valid, these same jurists nonetheless argue that such marriages are immoral, religiously deficient, unbecoming of a Muslim, and little more than a pretext for illicit sex. Apart from the theoretical question of whether a secret marriage meets the conditions of contractual validity, parties to a secret marriage in Muslim communities today further engage in a number of sins and transgressions and cause harms to spouses, children, parents, extended family, and the community that must also be reckoned with. The essay concludes with recommendations for how religious authorities can take steps towards regulating marriage in minority-Muslim communities, highlighting the need for public education on Muslim marriage practices that is embedded in a deeper religious morality centering the Sunna to counteract the dominant legalism in the Muslim community that underlies numerous contemporary dilemmas.

This essay reconstructs a late-Ayyubid court case in Damascus that was litigated repeatedly between 651/1253 and 655/1257, five years prior to the beginning of Sultan Baybars's judicial reform in 660/1262. The case involved the marriage of a minor orphan girl. The Shafii chief justice of Damascus initially permitted the marriage but later instructed his deputy judge to annul it, a move that outraged jurists and elicited a transregional debate. I reconstruct the case proceedings and ensuing controversies primarily from an unpublished treatise by Abu Shama al-Maqdisi (d. 665/1268), which is partly corroborated by contemporaneous fatwas and historical chronicles. The case illustrates that pre-reform Ayyubid courts lacked the coherent jurisprudence and institutional oversight that might have prevented abuses of power by unscrupulous and inept officials. Although Baybars's reform has long been recognized as a critical turning point in Islamic legal history, this case exposes the social and institutional dilemmas that the reform sought to address.

Recent scholarship has emphasized the contributions of the great Maliki jurist Shihab al-Din al-Qarafi (d. 684/1285) to Islamic legal thought. However, al-Qarafi's compilation of legal maxims and distinctions, al-Furug, has not yet been studied, nor has the collection of his teacher, the prominent Shafi'i jurist Ibn 'Abd al-Salam (d. 660/1262), known as al-Qawa'id al-kubra. Furthermore, the original thought of Ibn 'Abd al-Salam and his formative influence on al-Qarafi have been understated. This article compares their two works to demonstrate that al-Qarafi based his collection in large part on Ibn 'Abd al-Salam's al-Qawdid and it examines the techniques that al-Qarafi used, which included reordering, refining, and supplementing bon owed maxims, and anonymizing references to his teacher. Most salient, however, is al-Qarafi's "Malikization" of maxims, which entailed replacing Shafi'i doctrines and authorities with their Maliki counterparts and deploying maxims to defend Maliki doctrines. The article concludes by explaining al-Qarafi's authorial choices in light of his Maliki affiliation and the politics between the legal schools in Mamluk Cairo.