Harm Between Spouses and the Position of Maliki Scholars: A Jurisprudential Study

Abstract

This research aims to elucidate the concept of "harm" (al-darar) according to Maliki jurists, clarify the nuances between it and the term "reciprocal harm" (al-dirar), and expound upon its legal ruling (hukm). Furthermore, it reviews the various types of harm arising between spouses and delineates the stance of Maliki scholars toward them.
The study concludes that the concept of harm is expansive and cannot be confined to specific cases or predefined forms; rather, it is a dynamic construct that evolves with changing times, places, customs, and norms. The findings highlight that Maliki jurists were distinguished by their profound insight when addressing spousal harm claims. They devised teleological (maqasidi) jurisprudential rulings for each type of harm, meticulously considering its nature, the degree of its impact, and its frequency, thereby ensuring the realization of justice and the removal of hardship (raf’ al-haraj). Moreover, they did not merely adhere to the literal meanings of the texts but delved into their higher objectives (maqasid) to formulate effective solutions for eliminating harm, ultimately aiming to achieve either amicable cohabitation or an equitable separation.