A Critical Reflection on the Disregard of the Psychological Istibrāʾ of the Bondwoman in the Transition from Ownership to Marital Union: An Analysis of the Jurisprudential-Customary Conflict through a Critical Discourse Approach: A Case Study of the Tale of “The Slave-Girl and the King” in the Masnavi

Abstract

The central issue of this study is a critical analysis of the epistemological gap between the jurisprudential rulings of the institution of “istibrāʾ” and the psychological-social reality of the bondwoman at the moment of transition from “milk al-yamīn” to “marital union.” In early jurisprudential literature, istibrāʾ was legislated as a protective mechanism for preserving lineage and preventing the commingling of reproductive fluids; however, the fundamental question is how this legal mechanism, within the historical customary context of Islamic slaveholding societies, turned into an instrument for disregarding the psychological agency of the bondwoman and perpetuating proprietary domination even after her exit from slavery. By adopting a “critical jurisprudence” approach and drawing on the discourse theories of Foucault, Bourdieu, and Fairclough (Bourdieu, 1991; Fairclough, 1995; Foucault, 1972), the present study analyzes the narrative of “The Slave-Girl and the King” in Rumi’s Masnavi as a discursive-historical document. The research hypothesis is that patriarchal custom, through a selective rereading of jurisprudential texts, extended the concept of “bodily istibrāʾ” to “psychological istibrāʾ” and thereby kept the subjectivity of the enslaved woman in a state of perpetual suspension. The findings show that the dominant jurisprudential-customary discourse, by disregarding the inner will and consent of the bondwoman, institutionalized a form of “symbolic violence,” the effects of which have continued into the contemporary period in the form of institutional distrust toward women’s testimony in rulings concerning the waiting period and divorce. The proposed solution is a transition from a devotional-formalist approach to a maqāṣid-oriented approach in interpreting the rulings of istibrāʾ and the recognition of “psychological istibrāʾ” as a necessary condition for the validity of marriage.