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16 Islamic L. & Soc'y 302 (2009)
Induced Miscarriage in Early Maliki and Hanafi Fiqh

handle is hein.journals/islamls16 and id is 310 raw text is: Islamic Law and Society BRI L L Islamic Law and Society 16 (2009) 302-336 www.brill.nl/ils Induced Miscarriage in Early M ilii and Hanafi Fiqh* Thomas Eich Abstract This article traces the manner in which Maliki and H anafi 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 MIlikis hold for legal relevance from the moment of conception, while the Hanafis 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 2d/8h century, was linked to the Hanafl position that induced miscarriage is not punishable until the 120th day following conception. Keywords abortion, conception, embryogenesis, ensoulment, legal change, madhhabs, person- hood In literature about abortion in Sunnifiqh, it is commonly pointed out that the madhhabs differ considerably in their judgments, with M5likis Correspondence: Dr. Thomas Eich, Abteilung fur Orient- und Islamwissenschaft Asien- Orient Institut, Eberhard-Karls-Universitat Tibingen, Wilhelmstr. 113, 72074 TUbingen. E-mail: thomas.eich@uni-tuebingen.de * The research and writing of this article were carried out during a stay at the Berkeley Center of Religion, Peace & World Affairs at Georgetown University in 2008-9. I thank the Center's director Thomas Banchoff for all his help, the Humboldt Foundation for their financial support and the Executive Editors and external reviewers of Islamic Law and Society for their many comments and suggestions. DOI: 10.1163/092893809X12469547140991 Q Koninlijke Brill N, Leiden, 2009

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