XXX Международный конгресс ИИСАА. 19–21 июня 2019 г. Т. 1

Источниковедение и историография Арабских стран к 150-летию академика В. В. Бартольда (1869–1930). Ч. 1 111 legal status of minors in each branch of Islamic law. Rather surprisingly, however, it seems that al-Asrūshanī’s treatise was not widely circulated in the author’s own lifetime nor has it been in later periods. Like other all-inclusive compilations of substantive law ( furū ʻ), Jāmiʻ aḥkām al-ṣig hār addresses the main legal themes of religious ritual, family relationships, inheritance, property, contracts and obligations, criminal transgressions, and so forth, but it uniquely does so from the exclusive perspective of minors. Through his occasional use of fatāwā ( responsa ) and nawāzil (specific cases), al-Asrūshanῑ also endows his work with value as a source on some aspects of the social history of children. Due to the almost complete lack of medieval archival sources for reconstructing the real lives of children, this combination — furū ʻ , fatāwā, and nawāzil — in al-Asrūshanī’s treatise, is particularly important. Drawing primarily on Jāmi‘ a ḥkām al-ṣighā r, my paper examines classical Islam’s considerate approach towards children. It demonstrates jurists’ awareness of the legal significance of children’s physical and mental development and reveals the legal principles used to secure their protection, for instance, sacredness of life and rights to established paternity, guardianship, maintenance, lactation, and maternal custody,—a protection that includes children’s exemption from legal liability, which gradually lifts as they enter adulthood. Notably, a few legal themes presented throughout the Jāmi‘ , especially those addressing negligent parents and child marriage, reflect a stark contrast with its overall approach towards children, characteristic of Islamic law and ethics generally. Here, adults’ interest in diminishing the length of childhood, particularly for females, outweighs the tendency to protect children and to extend the period of childhood. This contradiction reflects an underlying ambivalence towards childhood as a protected space, marking al-Asrūshanī’s discussion. I have previously advanced the thesis that despite the social marginality of small children (and women), in the patrilineal-patriarchal societies of the medieval Muslim world, learned Muslims were familiar with the concept of childhood, which for them formed a distinct stage in the human life cycle, and characterized by universal psychological bonds between parents and their offspring. Childhood was seen as a unique period with its own rhythm of development, differing physically and psychologically from later periods in life, yet carrying a strong and enduring impact. Considered methods of childrearing, medical-hygienic treatment, and education ensured children’s proper care while laws secured their rights. In many respects, Jāmi‘ a ḥkām al-ṣ ighār supports this thesis, yet also highlights its limits. It shows how legal norms concerning children were largely formulated with free male children in mind, to the major exclusion of slave minors and free females, many of the latter subject to the practice of early marriage leading to enforced relinquishment of the protections of childhood.