The Difference Between a General and a Specific Formula
This ruling rests on juristic preference (istihsān) informed by considerations of welfare. If a man issues the declaration in wholly general terms and we oblige him to honor that generality, he will find no avenue to a lawful marriage, thus subjecting him to undue hardship—virtually as though he had vowed to commit a sin. If, on the other hand, he restricts his statement to a particular group of women, compelling him to divorce them does not entail the same difficulty.

Al-Shāfiʿī supports his view with the ḥadīth transmitted by ʿAmr ibn Shuʿayb, from his father, from his grandfather, who said: “The Messenger of Allah (peace and blessings be upon him) said, ‘No divorce may occur before marriage.’” Another wording reads: “There is no divorce concerning what one does not own, nor manumission concerning what one does not own.” The same position is authentically related from ʿAlī, Muʿādh, Jābir ibn ʿAbd Allāh, Ibn ʿAbbās, and ʿĀ’isha. A view similar to that of Abū Ḥanīfa is reported from ʿUmar and Ibn Masʿūd, though some scholars judge the report from ʿUmar weak.

Third Section: Reinstatement After Divorce

First Chapter: The Rulings Governing Reinstatement in a Revocable Divorce

Because divorce is of two kinds—irrevocable (bā’in) and revocable (rajʿī)—and because the rules of reinstatement after an irrevocable divorce differ from those that apply after a revocable one, this subject must be treated in two chapters:
• Chapter One: the rulings of reinstatement in a revocable divorce.
• Chapter Two: the rulings of taking a wife back after an irrevocable divorce.

Chapter One: Rulings of Reinstatement in a Revocable Divorce
There is unanimous agreement among Muslims that, so long as the wife remains within her waiting-period (ʿidda), the husband may take her back in a revocable divorce without her consent, in keeping with the Almighty’s words: “Their husbands have a better right to take them back in that [period]” (al-Baqarah 2:228). They also agree that consummation must have preceded such a divorce for it to be revocable, and that reinstatement is effected by a verbal declaration accompanied by witnesses.

They differ, however, on two questions: (1) whether witnessing is a condition for the validity of the reinstatement, and (2) whether intercourse alone suffices to effect it.

Witnessing: Mālik holds that it is recommended, whereas al-Shāfiʿī deems it obligatory. The cause of their disagreement is a tension between analogy and the apparent wording of the text, for the outward sense of the Almighty’s command, “And take two just men as witnesses from among yourselves” (al-Ṭalāq 65:2)