The Divorce of an Intoxicated Person in the Maliki School (A Foundational Study and Analytical Models from the Fatwas of the Libyan Fatwa House (Dar al-Iftaa)

Abstract

This research deals with the issue of divorce pronounced by an intoxicated person in the Maliki school from a foundational and applied perspective. It does so by linking Jurisprudential disagreement to its fundamentalist (uṣūlī) foundations and analyzing examples from the fatwas of the Libyan Fatwa House (Dar al-Iftaa). The research problem consists in clarifying the impact of fundamentalist (uṣūlī) foundationalism on directing Maliki opinions regarding the ruling on the divorce of an intoxicated person, and how this is reflected in the fatwas of the Libyan Fatwa House. The study aims to define the concept of intoxication and its categories, explain its effect on the competence of the person issuing divorce, review the opinions of the Maliki jurists along with their evidences, and analyze the methodology of the Libyan Fatwa House in addressing this disagreement, and the extent of its adherence to the dominant opinion within the school and the preference of the adopted view in its fatwas. The research employs descriptive, inductive, analytical, and comparative methods. It concludes that the disagreement on this issue is based on inconsistency between the requirement of (sanity) and discernment on the one hand, and the consideration of deterrence against transgressor on the other. The opinions within the Maliki school revolve around absolute necessity, non-necessity, and a detailed (approach). It also becomes clear that the Libyan Fatwa House favors the detailed view, linking the ruling to the degree of awareness and perception, in order to apply a general rule to an individual case (taḥqīq al-manāṭ), and to synthesize school-based foundationalism with a Maqasid-oriented perspective. This preference for the detailed view does not constitute a departure from the Maliki school; rather, it represents a recognized internal preference based on the strength of evidence and applying a general rule to an individual case (taḥqīq al-manāṭ). It is also consistent with the law governing the institution, which adopts the Maliki school and allows intra-school preference when multiple opinions exist.