CLH ARTICLE: Mohammad FADEL, Doctrinal change in Mālikī law: the case of judicial divorce on account of harm (Ḍarar) (Comparative Legal History, XIII (2025), nr. 2 (December), pp. 190-221)

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Abstract:

This article explores doctrinal change in Mālikī law. Using the example of the distinctly Mālikī doctrine of a wife’s right to judicial divorce based on harm (ḍarar), it explores how this rule became the basic position of the school by no later than the eighth/fourteenth century, when Khalīl b Isḥāq included it in his authoritative Restatement of Mālikī law. The earliest sources of Mālikī law from the second/eighth century used the law of battery and principles of property law to protect a wife who suffered harm at the hands of her husband but did not provide her a right of divorce. Mālik, idiosyncratically, deemed the decision of the Quranic-mandated marital arbitrators to be binding. The combination of Mālikī commitments to a wife’s property rights, her right to bodily integrity and the broad powers they assigned to judges, beginning with marital arbitrators, along with the widespread inclusion in marriage contracts of covenants of good treatment that granted wives the right to divorce themselves if their husbands abused them, eventually led to the recognition of judicial divorce based on harm.

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DOI: 10.1080/2049677X.2025.2579343