Marriage and Governance in Al-Hawi al-Kabir

Al-Hawi al-Kabir's treatment of marriage law and, uniquely given al-Mawardi's expertise, its broader context of Islamic governance — the role of the ruler in family affairs, judicial oversight of marriage contracts, and the state's responsibilities in upholding Islamic law — give this chapter a dimension not found in most fiqh manuals.

Al-Mawardi's treatment of the marriage contract follows the Shafi'i school's positions on the wali requirement, the two-witness requirement, the mahr, and the prohibited degrees with characteristic thoroughness. He examines the wali requirement in particular depth, engaging with the Hanafi school's position that an adult woman may contract her own marriage and explaining why the Shafi'i school maintains the wali's role as a condition of validity. His argument draws on the prophetic hadith 'No marriage without a wali' (Ahmad, Ibn Majah) and on the social purpose of the wali institution: protecting the woman's long-term interests against decisions made under emotional or social pressure.

On the prohibited degrees, Al-Hawi al-Kabir provides perhaps the most extensive classical treatment of the Quranic prohibitions (al-Nisa 4:22–23) in the Shafi'i tradition. Al-Mawardi examines the basis for each prohibition, the extension of each prohibition to analogous cases through qiyas, and the complex questions that arise at the boundary of the prohibitions — such as whether marriage to a woman from the People of the Book is prohibited to a Muslim man during times of conflict with non-Muslim nations, and what the ruling is regarding marriage to apostates or those of questionable religious status.

Al-Mawardi's unique contribution in Al-Hawi al-Kabir, drawing on his expertise as both a jurist and a political theorist (author of Al-Ahkam as-Sultaniyyah), is the attention he gives to the role of the Islamic state in upholding family law. The ruler and judges are responsible for ensuring that marriage contracts meet their conditions, that maintenance obligations are enforced, that divorce is carried out according to Islamic procedure, and that the rights of women and children within the family institution are protected. This governance dimension — the state as guarantor of Islamic family law — is more explicitly developed in Al-Hawi al-Kabir than in most purely jurisprudential fiqh manuals.

The chapter on talaq in Al-Hawi al-Kabir covers the Shafi'i positions with extensive comparative analysis. Al-Mawardi examines the question of the triple talaq in one session — whether it counts as three irrevocable divorces (the Shafi'i and majority Sunni position) or as one revocable divorce (a minority position). His engagement with the hadith evidence on both sides is thorough, and he defends the majority position while acknowledging the genuine weight of the minority view.

Al-Mawardi's treatment of the iddah (waiting period) includes an important discussion of its purposes: establishing whether the woman is pregnant (to determine paternity of any child), allowing time for reconciliation in cases of revocable divorce, and honoring the prior marriage through a dignified period of transition. Understanding these purposes helps explain why the iddah has the specific duration it does and why it is non-negotiable — it serves objectives that go beyond the convenience of either party. This purposive approach to legal analysis, characteristic of al-Mawardi's sophisticated jurisprudential method, is one of the features that makes Al-Hawi al-Kabir a landmark in Islamic legal thought.