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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