Jurisprudential Differences According to Al-Mawardi in His Book "Al-Hawi" on the Defects of Marriage A Comparative Jurisprudential Study

Abstract

This study examines the jurisprudential differences concerning defects in marriage as presented in Imām al-Māwardī’s al-Ḥāwī al-Kabīr. This is accomplished through a comparative and scholarly analysis of these distinctions. The research problem arises from the need to uncover the jurisprudential differences addressed in al-Ḥāwī al-Kabīr regarding marriage defects, to understand their underlying principles, and to identify their significant impact on the variation of similar cases and the resulting differences in legal rulings.

The study aims to highlight the effect of defects on establishing the option of annulment between spouses and to demonstrate the differences among jurists in defining and regulating these defects, while linking these discussions to contemporary jurisprudential applications. The researcher employed an inductive and analytical methodology, examining and tracing the texts of Imām al-Māwardī and then comparing them with the views of jurists from other schools of thought.

The research concludes by identifying three primary distinctions: the difference between marrying a slave woman to a person with defects and selling her to such an individual; the difference between a husband’s deception of his wife and a wife’s deception of her husband with respect to establishing the option of annulment; and the difference between impotence and sterility with regard to granting a postponement period. The study finds that the distinctions noted by Imām al-Māwardī are sound in terms of evidence and reasoning, revealing the jurists’ precision in differentiating between similar cases that result in differing legal rulings. This contributes to developing juristic competence and assists researchers and interested scholars in gaining a deeper understanding of marriage rulings and annulment options related to defects.

It is worth noting that the classification of legal distinctions remains limited compared with other areas, such as legal maxims. This encourages researchers and students of jurisprudence to explore this field further and to identify the underlying principles governing rulings in cases that appear similar but differ in legal implications, thereby leading to more accurate and precise conclusions.