Induced Miscarriage in Early Mālikī and Hanafī Fiqh

In: Islamic Law and Society
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  • 1 1Abteilung für Orient- und Islamwissenschaft Asien-Orient Institut, Eberhard-Karls-Universität Tübingen, Wilhelmstr. 113, 72074 Tübingen

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Abstract

This article traces the manner in which Mālikī and Hanafī jurists in the first six centuries AH arrived at their respective legal assessments of induced miscarriage. Each madhhab developed its own interpretation of embryogenesis, based on Q. 5:95 and Q. 65:4, and, therefore, its own distinctive position on induced miscarriage: The Mālikīs hold for legal relevance from the moment of conception, while the Hanafīs hold for legal relevance at a later stage of embryological development. This difference was also caused by different opinions on ways to legally establish that a miscarriage was induced. Finally, the question of ensoulment, which became widespread in Islamic legal reasoning on induced miscarriage only after the 2nd/8th century, was linked to the Hanafī position that induced miscarriage is not punishable until the 120th day following conception.

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