Imam Malik (r.a.), Imam ash-Shafi'i (r.a.) & the Ruling on Turtle Doves

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ

The following is taken from An Example of Imam ash-Shafi'i's (r.a.) Jurisprudence by Shaykh Gibril F. Haddad.

Shaykh Abu Manswur al-Baghdadi (r.a.) in Manaqib ash-Shafi`i and Naqd Abi ‘Abdullah al-Jurjani fi Tarjih Madzhab Abi Hanifah related the following example of the Imam’s (r.a.) perspicuity at an early age.

Imam ash-Shafi’i (r.a.) was sitting at Imam Malik’s (r.a.) feet one day when a man came in and said, “I sell turtle-doves, and one of my customers returned one of them to me today, saying that it does not coo, so I swore to him on pain of divorce that my turtle-dove coos all the time!”

Imam Malik (r.a.) said, “You have divorced your wife and are not to approach her.”

Imam ash-Shafi’i (r.a.) was fourteen at the time.  He asked the man, “Which is more, your turtle-dove's cooing or its silence?”

The man replied, “Its cooing.”

Imam ash-Shafi’i (r.a.) said, “Consider your marriage valid, and there is no penalty on you.”

Whereupon, Imam Malik (r.a.) frowned at him saying, “Boy!  How do you know this?”

Imam ash-Shafi’i (r.a.) replied, “Because you narrated to me from az-Zuhri, from Abu Salama ibn ‘Abd ar-Rahman, from Umm Salama, that Fathimah bint Qays said, ‘O Messenger of Allah, Abu Jahm and Mu’awiyah have both proposed to me.'

The Prophet (s.a.w.) replied, ‘As for Mu’awiyah, he is penniless, and as for Abu Jahm he does not put down his staff from his shoulder [from travel].’  Meaning: in most of his states; for the Arabs declare the more frequent of two actions [exclusively of the other] because of its constancy.  And since the cooing of this man’s turtledove is more than its silence, I declared it constant in its cooing.”

Imam Malik (r.a.) was pleased at his reasoning.  The hadits in question was narrated by Imam al-Bukhari (r.a.) and Imma Muslim (r.a.).  This early ruling of Imam ash-Shafi’i (r.a.) is also found in Thabaqat ash-Shafi’iyyah al-Kubra by Imam ibn as-Subki (r.a.).


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