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

BOOK: Youcef L. SOUFI, The Rise of Critical Islam. 10th-13th Century Legal Debate (Oxford: University Press, 2023). ISBN: 9780197685006, pp. 296, £71.00

 

(Source: OUP)

ABOUT THE BOOK

In a richly narrated historical study, Youcef Soufi excavates an Islamic legal culture of critique from the 10th to 13th centuries. Focusing on the practice of munāẓara (disputation), Soufi explores how and why oral debates became a pervasive and revered part of the intellectual legal landscape of Iraq and Persia. Using the life and career of celebrated Iraqi jurist Abū Isḥāq al-Shīrāzī, he traces the formalization of debate gatherings at the dawn of the classical legal schools (al-madhāhib) in the early 10th century and analyzes the wider institutional, social, and discursive conditions that made debate an important feature of any jurist's practice.

Pushing back against claims that classical Muslim jurists sought to weed out differences of opinion, The Rise of Critical Islam presents a community committed to the openness, fluidity, and continued exploration of the law. Challenging the view of debate gatherings simply as mechanisms of doctrinal resolution before codification, the study reveals a classical culture where critical debates were part of a continual and personal quest to discover God's law. In uncovering this classical legal culture, Soufi invites readers to question claims about the promise of secular critique in disciplining religious passions and forging human solidarity.

ABOUT THE AUTHOR

Youcef Soufi is Research Associate at the University of Toronto's Institute of Islamic Studies. He is a former Assistant Professor in Islamic Studies at the University of British Columbia and a former Chair of the Canadian Association for the Study of Islam and Muslims (CASIM). He has held fellowships at the Jackman Humanities Institute at the University of Toronto, the Centre for Comparative Muslim Studies at Simon Frasier University, and The Centre for Studies in Religion and Society (CSRS) at The University of Victoria.

TABLE OF CONTENTS

Introduction

Part I

Chapter 1: Mourning Loss Through Debate: Pious Critique and its Limits

Chapter 2: The Emergence of Pious Critique: a Genealogy of "Munazara"

Chapter 3 "Why do We Debate?": Uncovering Two Discursive Foundations for Disputation

Part II

Chapter 4: Debating the Convert's Jizya: How the Madhhab Enabled Ijtihad

Chapter 5: Forced Marriage in Shafi'i Law: Revisiting School Doctrine

Chapter 6: The Case of the Mistaken Prayer Direction: Debating Indeterminate School Doctrine

Part III

Chapter 7: The End of Critical Islam?: Shafi'ism and Temporal Decay

More information with the publisher.