Between Sale and Worship: Consistent Inconsistencies in Classical Ḥanafī and Mālikī Rulings on Marital Annulments

Abstract

This essay compares patterns in Ḥanafī and Mālikī rulings about marital annulments and shows how they are connected to differences in how these two schools treated the relationships between marriage, sales, and worship law. Drawing on a variety of jurisprudential texts from the 5th/11th to the 9th/15th centuries, including Ibn Rushd’s (d. 595/1198) Bidāyat al-Mujtahid and Burhān al-Dīn al-Farghānī al-Marghīnānī’s (d. 593/1197) al-Hidāyah, we first show that Ḥanafī and Mālikī rulings on annulments were consistently inconsistent: when they differed, Mālikīs consistently ruled to permit annulments that Ḥanafīs prohibited. Focusing then on annulments based on defects in dower and maintenance, we show how Mālikī rulings manifest a comparatively stronger emphasis on the analogy between marriage and sale, while Ḥanafī rulings manifest a comparatively stronger emphasis on the analogy between marriage and worship. Finally, we discuss how these differences in emphases may help explain the schools’ other divergent rulings on annulments.