For the first session of my graduate seminar “Readings in Islamic Law” this fall, I asked students to read two texts: a hadith on divorce initiated by the wife (al-Bukhārī, Kitāb al-Khulʿ, story of the wife of Thābit b. Qays) and a legal debate between Abū Isḥāq al-Shīrāzī and al-Dāmaghānī in the eleventh century (from al-Shīrāzī’s entry in al-Subkī’s Ṭabaqāt). Both of these texts deal with the topic of divorce, and both are engaging depictions of oral exchanges on a legal point, but in terms of their legal relevance they are diametrically opposed.
The hadith is a source of law: Muḥammad’s statement to Thābit b. Qays, ordering him to divorce his wife, who has declared that she no longer wants to live with him, carries the legal authority of prophethood. The work of Muslim jurists was to turn this report into law. The point of contention that emerged in this process concerned the fact that Muḥammad did not grant divorce to the woman but rather instructed her husband to divorce her. Does the report, then, mean that only a husband has the power to dissolve a marriage? Does it mean that a husband is obligated to divorce his wife when she asks for a divorce, or only that this act is recommended? And, finally, does Muḥammad’s command that the wife subsequently return the dowry her husband had paid her mean that such dowry reimbursement is a necessary feature of a wife-initiated divorce, in the sense of returning a gift or of “buying her freedom”? This succinct text thus provides an introduction to the issue of ambiguity in the authoritative sources and the ensuing juristic efforts to resolve it—a key engine of the development of Islamic law.
The second text is a transcript of a public legal debate in eleventh-century Baghdad between the Shāfiʿī jurist al-Shīrāzī and the Ḥanafī jurist al-Dāmaghānī on the question of whether a husband’s inability to provide for his wife is grounds for annulment of a marriage.[1] To the surprise of many first-time readers of this text, the debate does not revolve around the citation or discussion of scriptural proofs from either the Quran or hadith. Instead, it consists of al-Shīrāzī defending the affirmative position of his school against the objections of the Ḥanafīs by arguing for its consistency with the school’s other positions. Al-Shirāzī’s argument is based on an analogy: since inability to provide for one’s slave leads to cancellation of the ownership of the slave, inability to provide for one’s wife similarly leads to the dissolution of the marriage, because both slavery and marriage constitute a type of possessing that entitles the one possessed to maintenance. Al-Dāmaghānī challenges the analogy by pointing to the difference between possessing a wife and possessing property (here a slave). Al-Shīrāzī agrees that there is a difference, but he insists that it does not invalidate the analogy, since both cases involve a right to maintenance and legal consequences for the failure to provide it.
In the course of the debate, the two participants lay out different definitions of the essence of marriage. For al-Shīrāzī, the institution’s core purpose is the establishment of human connections and conjugal bonds (in contrast to the goal of property ownership, which is control, use, and consumption of the owned property). Al-Dāmaghānī’s definition is more minimalist: the purpose of marriage is to make intercourse legal.
This text is interesting for a variety of reasons. First, it represents a very different genre of legal writing and approach to the law compared to the first text. The focus in this exchange is not on correct interpretation of the sources but on coherent argumentation and consistency within the body of the school’s positions. Second, the seeming mismatch between al-Shīrāzī’s willingness to analogize a wife to a slave, on the one hand, and his insistence on the primacy of emotional connection rather than sexual availability as the defining feature of wedlock, on the other, is striking. Among other issues, it raises the question whether legal arguments by jurists such as al-Shīrāzī reflected prior ethical commitments and social attitudes—or whether ethical arguments might have been articulated to justify legal positions dictated by the necessity of maintaining consistency within the school.
Notes:
[1] For a translation and discussion of this debate, see Youcef Soufi, “Pious Critique: Abū Isḥāq al-Shīrāzī and the 11th Century Practice of Juristic Disputation (Munāẓara),” PhD thesis, University of Toronto, 2017.