The history of the Mālikī law of spousal abuse (ḍarar al-zawjayn)

I gave this lecture almost three years ago at the Program on Islamic Law at Harvard Law  School on the history of the Mālikī law of spousal abuse (ḍarar al-zawjayn). As I explore the topic in greater detail in what I hope will be a monograph on legal process in medieval Islamic law, it has become much clearer to me the pathways of legal change over the roughly  one thousand years that separated Mālik b. Anas, the titular eponym of the Mālikī school law, from the content of the law as it existed in the 18th century. The Mālikī doctrine of judicial divorce based on a broad conception of spousal harm was not known to Mālik but it evolved gradually over time as a result of the interaction of remedies in the law of consensual divorce settlements (khulʾ) and the practices of document writers that inserted provisions in marriage contracts giving wives the right to divorce themselves in the event their husbands treated them poorly. How this doctrine developed is an interesting case of how remedies can themselves become substantive rights. The mature doctrine — that a wife could establish harm by hearsay and obtain a judicial divorce as a result — effectively did an end run around ordinary rules of evidence that only admitted the testimony of men (at least according to the Mālikīs) to prove marriages and prove divorces. Hearsay was originally recognized as admissible solely for the purpose of allowing a woman to claim she had been unlawfully coerced  into paying her husband for a divorce on the theory that it was merely a claim for money. Because that claim was viewed solely as a property dispute and not a status dispute, evidence other than that of two men were admitted. It was only later that this became a free-standing cause of action for a judicial divorce and not simply a basis for restitution for money unjustly paid.