Published online by Cambridge University Press: 23 April 2009
With the generalization of production for exchange in modern times and the corresponding expansion of monetary and commercial transactions, the issue of contractual freedom has become a major concern for Muslim jurists and legislators, instigating a reconsideration of the classical doctrines of Islamic law on the subject. Due partly to its religious character and partly to the historical circumstances presiding over its formation in the first three centuries of the Hijra, Islamic law does not permit freedom of contract. Broadly speaking, three kinds of considerations intervene to restrict freedom of contract in classical fiqh: (a) those arising from the prohibition of usury (ribā); (b) those delimiting the licit object of legal obligation (maḥall alʿaqd); and (c) those concerning the stipulations attached to the contract (shurūṭ). In the present article, I investigate the third category of restrictions and touch on usury and the licit object of obligation insofar as the latter affect shurūṭ (sing., sharṭ), namely the conditions attached to a contract.
Author's note: I owe special thanks to my wife, Basma al-Jaouni Arabi, and the three anonymous readers of IJMES, who helped to make this a better essay in substance and style.
1 Only shurūṭ in this sense, namely as conditions or clauses attached to the primary contract, are the object of the present investigation. This meaning is to be distinguished from another sense of the term in Islamic law, designating the conditions that are necessary for the validity of legal acts; thus, consent (riḍā) is a condition (sharṭ) for the validity of a sale, and intent (niyya) is a condition of validity of prayer. For a brief treatment of the theory of attached conditions in Hanafi law, see Chehata, Chaflk, Théorie générale de l'obligation en droit musulman hanéfite, Section 118: Théorie de la Clause Adjointe (Paris: Editions Sirey, 1969), 107–9.Google Scholar
2 The Ottoman Mejelle-i Ahkam-i ʿAdliyye (Majalla) was promulgated in 1877 as the Civil Law of the Ottoman State. It constituted the first modern codification of an Islamic law of contracts and obligations derived from the Hanafi school of jurisprudence. The Majalla was implemented across the territories of the Ottoman Empire and remained in force in the successor states after the dismantling of the empire in 1918; it was replaced by new civil codes in Lebanon (1932), Syria (1949), and Iraq (1953). In the Turkish republic, the Majalla was replaced in 1926 by a secular Onar, Civil Code. S. S., “The Majalla,” in Law in the Middle East, ed. Khadduri, Majid and Liebesny, Herbert (Washington, D.C., 1955), 292;Google Scholaridem, “La Codification d'une Partie du Droit Musulman dans l'Empire Ottoman,” Annales de la Faculté de Droit d'Istanbul 3 (1954): 90.Google Scholar
The Majalla, a re-casting of the Hanafi law of civil transactions into the form of a modern code, appeared in the wake of the radical Tanzimat reforms of commercial, penal, and land law effected by the Ottoman state in the mid-19th century. By virtue of Tanzimat legislation, the domains previously governed by Kanun (Ottoman Administrative Law) and Islamic Shariʿa gradually became the domain of laws borrowed from European codes. In particular, the Law of Commerce of 1850 regulated market and financial operations after a European fashion. Ahmed Cevdet Paşa, minister of justice, and the Committee of Ottoman legists that he headed in the codification of the Majalla explain the Majalla's relation to the Law of Commerce in the Explanatory Memorandum:
[T]he domain of Islamic law which treats of wordly matters is divisible into family (munākahāt), civil (mʿāmalāt), and penal (ʿuqūbāt) laws…. However, with the increasing role of commercial operations in these times, it became necessary to exclude many transactions, like the bill of exchange (sufāja)… and the regulation of bankruptcy and others, from the original civil law. To regulate these exceptions, a special law, called the Law of Commerce, was enacted…. The Imperial Law of Commerce is the code that governs the operation of the Courts of Commerce in the different parts of the State. As for those aspects of commercial lawsuits for which no ruling exists in the Law of Commerce, they present grave difficulties…. For it is impracticable to call upon the members of the Courts of Commerce to consult the treatises of Islamic law, as such effort would require scientific skill and special training, especially in connection with the Hanafi school…. So in compliance with the sublime wish,… we have organized a Majalla composed of those urgent problems and cases of civil transactions of frequent occurrence, and which derive from the rulings of the Hanafi masters.
Explanatory Memorandum of the Majalla, ʿAlī Ḥaydar, Durar al-Ḥukkām Sharḥ Majallat al-Aḥkām, 12 vols. (Haifa: ʿAbbasid Press, 1925), 1:8–10.Google Scholar
3 A complementary source of this difference lies in the fact that Abu Hanifa (d. 767) and Ahmad Ibn Hanbal (d. 855), the two schools' founding figures, did not see eye to eye on the issue of stipulation in contracts. The present essay deals mainly with the crystallizations of the original school doctrines in the classical Hanafis and late Hanbalis. A bird's-eye view of the different rulings in the 2nd and 3rd centuries of the Hijra is the Shafiʿi jurisconsult's, Muhammad ibn ʿAbd Al-Rahman al-Dimashqi (d. c. 1378): “If a house is sold on the condition (sharṭ) that the vendor inhabit it [for a limited period], or if a garment is sold on the condition that the seller tailor it, then in both cases the sale contract is invalid according to Abu Hanifa and al-Shafiʿi; Ibn Abi Layla and [Ibrahim] al-Nakhaʿi… consider the sale as permissible and the condition (sharṭ) as null and void; Ibn Shubruma considers both the sale and the condition as permissible; Malik is reported as saying that if one of the parties stipulates (ishtaraṭ) a benefit for one month—as in inhabiting the house—then the stipulation is valid; Ahmad [ibn Hanbal] said that the stipulation (sharṭ) of inhabiting the house for one or two days does not invalidate the contract.” al-Dimashqī, Muḥammad ibn ʿAbd al-Raḥmān, Raḥmāt al-Ummafī Ikhtilāf al-Aʾimma, ed. al-Sharbajī, ʿAlī and al-Nūrī, Qāsim (Beirut: Muʾassasat al-Risāla, 1994), 271.Google Scholar
4 ʿAbd al-Razzaq Sanhuri, the leading modernist Muslim jurist of the 20th century, is the maker of the present-day civil laws of Egypt (1949), Syria (1949), and Iraq (1951). For an analysis of Sanhuri's legal pluralism, see Arabi, Oussama, “Al-Sanhuri's reconstruction of the Islamic Law of Contract Defects,” Journal of Islamic Studies 6, 2 (1995): 153–72.CrossRefGoogle Scholar
5 Multaqā al-Abḥur, a 16th-century manual of Hanafi law by the legist Ibrahim al-Halabi, was, in the words of a recent scholar of Ottoman legal history, the “shariʿa manual [which] came to hold sway in the Ottoman madrasa (religious school) and the Ottoman court,” in the central area of the Ottoman Empire—the Istanbul/Bursa region—during the 17th and 18th centuries. Gerber, Haim, State, Society, and Law in Islam: Ottoman Law in Comparative Perspective (Albany: State University of New York Press, 1994), 30.Google Scholar
7 Ibid., 1:135–38. Provision 189 affirms the nullity of those attached clauses which are of no legal consequence for the validity of the contract; thus, if the contract is valid prior to the addition of the clause, it remains valid with that addition. Being of no practical significance, it is virtually absent from the succeeding discussion.
8 “A Sequel to the Book of Sales of the Majalla, ,” Jerīde-i ʿAdliyye, a monthly publication of the Ministry of Justice (Ankara: Yeni Gūn Press, 1922), 2:94–96.Google Scholar
12 Muḥammad Abū al-Ḥasan al-Shaybānī (d. 804) was the most prominent companion of Abu Hanifa, second only to Abu Yusuf (d. 798). Both assumed the office of chief judge (qaḍī al-quḍāt) under the ʿAbbasid caliph, Harun al-Rashid. Their fiqh writings survived, thus providing the Hanafi school with its reference texts (uṣūl; ẓāhir al-riwāya).
13 al-Shaybānī, Muḥammad Abū al-Ḥasan, Kitāb al-Aṣl, ed. al-Afghānī, Abū al-Wafāʿ, 5 vols. (Beirut: ʿ Ālam al-Kutub), 5:95.Google Scholar
15 al-Sarakhsī, Shams al-Dīn (see n. 17), al-Mabsūṭ, 30 vols. (Cairo: al-Saʿ āda Press, 1324 A.H.), 13:13Google Scholar The quotation is an excerpt from a dialogue between ʿAbd al-Warith ibn Saʿid and Abu Hanifa.
16 Muslim jurists distinguish, in the domain of civil transactions (muʿāmalāt), the exchange of objects which have monetary value (muʿāwaḍa māliyya) from the contracts of marriage (nikāḥ), testation (waṣiyya), and donation (hiba), where only one term of the transaction has a monetary value. In this article I consider only the former.
17 al-Kāsānī, Abū Bakr (d. 1189), nicknamed “king of scholars” (malik al-ʿulamāʾ), was one of the greatest Hanafi legists of the 6th century A.H. His magnum opus, Kitāb Badāʾiʿ al-Ṣanāiʿ fi Tartīb al- Sharāʾiʿ, 7 vols. (Cairo: 1327–48 A.H.),Google Scholar noted for its perspicuity and comprehensiveness, constitutes a historically most original statement of Hanafi law. Al-Kasani studied under ʿAlāʾ al-Dīn al-Samarqandī (d. 1144) and was instructed in the latter's Tuḥfat al-Fuqahāʾ, an authoritative exposition of Hanafi legal doctrine. W. Heffening and Y. Linant de Bellefonds, Encyclopaedia of Islam, 2nd ed., s.v. “Kāsānī.”
20 Shams al-Dīn al-Sarakhsī (d. 1090) was a distinguished Hanafi jurist of the 5th century A.H. in Bukhara. He is the author of al-Mabsūṭ, an encyclopedic work synthesizing the major Hanafi sources literature (uṣūl; ẓāhir al-riwāya). In his book, al-Sarakhsī systematically expounds al-Shaybani's (d. 804) compilation of the legal doctrines of the two founders of the Hanafi school of law, Abu Hanifa (d. 767) and Abu Yusuf (d. 798). See al-Mays, Khalīl, Fahāris al-Mabsūṭ (Beirut: Dār al-Maʿrifa, 1980), 7–10;Google ScholarAl-Laknawī, , āl-Fawāʾid al-Bahiyya (Cairo, 1932 A.H.), 158–59.Google Scholar
22 Al-Kāsānī, , Badāʾiʿ, 5:172.Google Scholar Al-Sarakhsī holds the same view: “A stipulation which is not required in the [primary] contract but which is an identifiable custom (ʿurf ẓāhir) is permissible: Thus if one buys a sole…on the condition that the vendor fix it to the shoe, the justification thereof is that established custom is a juridically recognized ground of admissibility, and that its proscription would be a cause of obvious hardship.” Al-Sarakhsī, , al-Mabsūt, 13:14.Google Scholar
23 In the words of the Islamist legal scholar, Y. Linant de Bellefonds: “The Hanafi school… considers that stipulations attached to a contract are invalid in principle, while still admitting some exceptions; invalidity therefore is the rule, and validity the exception.” Bellefonds, Y. Linant de, Traité de droit musulman comparé, 3 vols. (Mouton & Co., 1965),Google ScholarThéorie ginérale de l'acte juridique, 1:237.Google Scholar It could be surmised that the present, and two preceding, admissible types of stipulations fall into what Bellefonds calls “the exception.”
24 The notion of gharar, or uncertainty, is central in the determination of the object of legal obligation (maḥall al-ʿaqd) in Islamic law. Different schools’ rulings exist with respect to that measure of uncertainty about the object of contract which makes it illicit and, hence, renders the contract invalid, but there is consensus on the general principle that prohibits the uncertainty which is detrimental to the interest of a contracting party. The Maliki jurist al-Qarafi (d. 1285) distinguishes two general meanings in this connection, the unknown (majhūl) and the uncertain: “Legal scholars allow themselves the privilege of using these two expressions interchangeably. The meaning of the uncertain (gharar) is that one isignorant about whether it exists or not, whereas the unknown (majhūl) really exists but without knowledge of its character…. Uncertainty could obtain without absence of knowledge, as when one purchases a runaway slave whom he knows; this purchase comprises risk because it is uncertain whether it will materialize or not. Absence of knowledge could obtain without uncertainty, as when one purchases a stone not knowing whether it is glass or ruby.” al-Qarāfī, Shihāb al-Dīn, al-Furūq, 4 vols. (Cairo: 1344–46 A.H.), 3:265.Google Scholar
27 For a recent treatment of the notion of illicit object of exchange (ghayr māl) in the context of a critique of prevalent misconceptions about the role of casuistry in Islamic law, see Johansen, Baber, “Casuistry: Between Legal Concept and Social Praxis,” Islamic Law and Society 2, 2 (1995): 142–49Google Scholar.
29 The prohibitive hadith in question occurs in, among others, the hadith collection of al-Tirmidhi: “the proscription of two transactions in a single sale (al-nahīʿ an bayʿataynfī bayʿa)…; it is a correct, authentic tradition (ḥadīth ḥasan ṣahīh).” al-Tirmidhī, Abū ʿIsaal-Jāmiʿ al-Ṣaḥīḥ, Sunan al-Tirmidhī, 5 vols., ed. al-Bāqī, Muḥammad Fuʾ ād ʿAbd (Cairo: Muṣtafā al-Bābī al-Halabī, 1968), 3:524Google Scholar.
30 There is consensus among all schools of Islamic law that usury and interest-charging are forbidden acts. The interdiction stems from the Qurʾan, sura II, verse 275: “God permitted the sale (al-bayʿ) and prohibited usury (al-ribā).” A number of Prophetic dicta came to reinforce the Qurʾanic prohibition, resulting in substantial restrictions on financial transactions in Muslim societies and the development of specialized legal stratagems (ḥiyal) to controvert these restrictions. For a classic re-statement of the problem in the light of modern economic conditions, see Riḍā, Rashīd, Ḥaqīqat al-Ribā al-Muḥarram (Cairo, 1937Google Scholar).
32 Al-Kāsānī invalidates the transaction within a transaction (ṣafqafi ṣafqa) on the ground of its proscription by the Prophet. Al-Kāsānī, , Badāʾiʿ, 5:173Google Scholar.
34 The author of Badʾiʿ is explicit in this regard and appeals to Qurʾanic injunction: “Consent (alriḍā) is the condition of validity of the sale contract. God said: ‘O believers, do not confiscate your goods between you unjustly; let there be commerce by your mutual consent (tarāḍin minkum).’” Ibid., 5:274.
36 al-Subkī, Tāj al-Dīn, Ṭabaqāt al-Shāfiʿiyya al-Kubrā, 6 vols. (Cairo: al-Ḥusayniyya Press, 1323–24 A.H.), 2:337.Google Scholar
37 Henri Laoust's monumental study of Hanbali sources began with his painstaking work on the life and thought of the Syrian Hanbali master Taymiyya, Ibn, Essai sur les doctrines sociales et politiques de Takī-d-Dīn Aḥmad b. Taimīya (Cairo: Institut Français d'Archéologie Orientale, 1939).Google Scholar In 1950, he published Le Précis de Droit d'lbn Qudāma (Beirut: Institut Français de Damas, 1950),Google Scholar a translation, with an introduction, of Muwaffaq al-Dīn ibn Qudāma's manual of Hanbali law, al-ʿUmda fī ʾl-Fiqh. In the late 1950s appeared two studies of his dealing with Hanbali dogmatic theology and articles of faith (“Les premiéres professions de foi hanbalites,” in Mélanges Louis Massignon [Institut Français de Damas: 1957], 7–35;Google Scholar and La profession de foi d'lbn Baṭṭa [Damascus: 1958]).Google Scholar This was followed by two detailed surveys of the history of the Hanbali movement from its inception in the 9th century to the 14th century (“Le Hanbalisme sous le Califat de Baghdad,” Revue d'Etudes Islamiques : 67–128;Google Scholar“Le Hanbalisme sous les Mamlouks Bahrides,” Revue d'Etudes Islamiques : 1–71).Google Scholar
Makdisi's, George important works on Hanbalism include Ibn Qudāama's Censure of Speculative Theology (London, 1962), a translation of Ibn Qudāma's Taḥrīm al-Naẓarfī Kutub Ahl al-Kalām;Google Scholar“Le Livre de la Dialectique d'lbn ʿAqīl,” Bulletin d'Études Orientates 20 (1967): 119–206;Google Scholaridem, Ibn ʿAqīl et la résurgence de I'Islam traditionaliste au Xle siècle (Damascus, 1963);Google Scholar and idem, “Hanbalite Islam,” in Studies on Islam, ed. Swartz, Merlin (Oxford, 1981).Google Scholar
39 Even in the study of Hanbali theology (uṣūl al-dīn) and dogmatics (ʿaqīda), the place of individuality has been overlooked by modern authors. For despite the preponderant hostility of Hanbali ʿulamāʾ vis-à-vis rational theology or kalām, the history of Hanbalism witnessed the emergence of original minds, such as al-Qadi Abu Yaʿlā ibn al-Farra1ʾ (d. 1066) and Ibn ʿAqil (d. 1119). The former, who assumed the office of judgeship (qadāʾ) for the caliphal district of Baghdad under the Sunni caliph al-Qaʾim, authored the extant al-Muʿtamad fī Uṣūl al-Dīn (Beirut, 1974)Google Scholar, an exposition and defense of Hanbali theological literalism (bilā kayfa) using the kalām method of rational argumentation against the speculative positions of the Muʿtazilis and Ashʿaris. The latter's life and works were the subject of Makdisi, George, Ibn ʿAqīl et la résurgence de I'hlam traditionaliste au Xle siècle (Damascus, 1963),CrossRefGoogle Scholar revealing a complex mind who attempted a synthesis of rationalism and traditionalism.
40 For a comparative analysis of the Hanafi-Shafiʿi versus the Hanbali theory of intention in contracts, and the proximity of the latter to modern European legal doctrine, see Arabi, Oussama, “Intention and Method in Sanhūri's Fiqh: Cause as Ulterior Motive,” Islamic Law and Society 4, 2 (1997): 200–223.CrossRefGoogle Scholar
41 Aḥmad, ʿAbdallah ibn, Masāʾ al-Imām Aḥmad b. Ḥanbal, ed. al-Shāwīsh, Zuhayr (Beirut: al-Maktab al-Isālmī, 1981), 277.Google Scholar
43 Abū al-Qāsim al-Khiraqī (d. 945) was one of the earliest fiqh authorities of the Hanbali school. Although his works were destroyed, consumed by fire, his surviving legal manual, al-Mukhtaṣar (The Digest), became a most important reference text of Hanbali law in the classical period and beyond. See Yaʿā, Ibn Abī, Ṭabaqāt al-Ḥanābila, ed. al-Fiqī, Muḥammad Ḥ ā mid, 2 vols. (Cairo: al-Sunna al- Muḥammadiyya Press, 1952), 2:75–118.Google Scholar
44 Abū ʿAlī al-Ḥasan ibn al-Bannāʾ was a disciple of the great Hanbali jurisconsult and judge al-Qadi Abu Yaʿlā ibn al-Farrʾ (d. 1066). In addition to his commentary on al-Khiraqī's al-Mukhtaṣar, Ibn al-Bannāʾauthored a number of fiqh works, among them al-Kāmil fiʾl-Fiqh. For the life and works of Ibn al-Bannāʾ, see Makdisi, George, “Autograph Diary of an Eleventh-Century Historian of Baghdad,“in History and Politics in Eleventh Century Baghdad, ed. Makdisi, G. (Great Britain and U.S.A., 1990), art. II.Google Scholar
45 al-Bannāʾ, Abū ʿAlī al-Ḥasan ibn, Kitāb al-Muqniʿ fī Sharḥ Mukhtaṣar al-Khiraqī, ed. al-Buʿaymī, ʿAbd alʿAziz, 4 vols. (Riyadh: Maktabat al-Rushd, 1993), 2:697–98.Google Scholar
46 Abū al-Ḥusayn Muḥammad ibn Abī Yaʿlā (d. 1131) was the son of the leading 11th-century Hanbali jurisconsult and judge of the Caliphal Quarters under al-Qaʾim, al-Qadi Abu Yaʿā ibn al-Farraʾ (d. 1066). Until recently it was believed that Ibn Abī Yaʿlā's only extant work was his famous biographical dictionary, Ṭabaq;ā t al-Ḥanābila, 2 vols., ed. al-Fiqī, Muḥammad Ḥāmid (Cairo: al-Sunna al-Muḥammadiyya Press, 1952).Google Scholar In 1993, due to the editorial efforts of the Saudi scholars ʿAbdallah al-Tayyar and ʿAbd alʿAziz al-Maddallah, Ibn Abī Yaʿlā's historical survey of the various reports on Ibn Hanbal's juridical rulings, al-Tamām (The Completion) limā Ṣaḥḥ fī al-Riwāyatyn ʿan al-Imām—a continuation of a similar work by his father—saw the light; see n. 47.
47 Yaʿlā, Abū al-Ḥusayn Muḥammad ibn Abī, Kitāb al-Tamām limā Ṣaḥḥ fī al-Riwāyatayn wa al-Thalāth wa al-Arbaʿ ʿan al-Imām, 2 vols., ed. al-Ṭayyār, ʿAbdallah and Maddallah, ʿAbd al-ʿAziz al (Riyadh: Dār al-ʿĀṣima, 1993), 2:20.Google Scholar
48 Ibn Abī Yaʿlā cites the following chain of transmitters of Jabir's hadith: “Abu ʿIsa al-Tirmidhi—Ibn Abi ʿUmar—Wakiʿ—Zakariya—al-Shaʿbi—Jabir b. ʿAbdallah said that he sold the Prophet a camel on the condition that it carry Jabir to his people; Abu ʿIsa [al-Tirmidhi] said that it is a correct, authentic tradition (ḥadīth hasan ṣaḥīḥ).” (Kitāb al-Tamām, 2:20–21). For the tradition in question, see al-Tirmidhī, Abū ʿĪsā Muḥammad, Sunan al-Tirmidhī, 2:362.Google Scholar
49 This applies primarily to the invalidating stipulation, the three types of valid stipulation discussed earlier being unproblematically admitted as legally binding by the Hanbalis. Qudāma, Shams al-Dīn ibn, al-Sharḥ al-Kabīr ʿalā al-Muqniʿ, 12 vols. (Cairo, 1341–48 A.H.), 4:48.Google Scholar
50 Muwaffaq al-Dīn ibn Qudāma (d. 1223), born on the outskirts of Jerusalem, his parents sought refuge in Damascus from the Crusaders. He flourished in the Syrian metropolis with other distinguished members of the Banu Qudama—becoming the leader of the Hanbali juristic community and participating in the Sunni revival under Nur al-Din and Salah al-Din. His juristic chef d'oeuvre is al-Mughnī, 12 vols. (Cairo: 1341–48 A.H.), a comparative—with the doctrines of the other schools of fiqh—and detailed presentation of Hanbali law on the lines of the Hanbali al-Khiraqi's (d. 945) celebrated legal digest, al-Mukhtaṣar. Muwaffaq al-Dī n is also the author of al-Muqniʿ, a summary of his al-Mughnī. See Shāma, Abū, Tarājim Rijāl al-Qarnayn (Cairo, 1366 A.H.), 139–42;Google ScholarLaoust, , Le Précis de Droit d'lbn Qudāma, introduction, ix–xxxGoogle Scholar.
51 Shams al-Dīn ibn Qudāma (d.1284) was the first Hanbali legist to become chief judge, qāḍi alquḍāt, of Damascus. He studied under Muwaffaq al-Dīn ibn Qudāma and wrote al-Sharḥ al-Kabīr ʿala al-Muqniʿ—published on the margin of Muwaffaq al-Dīn, al-Mughnī—a famous commentary on the latter's treatise. Among Shams al-Dīn's disciples figures the prominent Ibn Taymiyya; see n. 59. Kathīr, Ibn, Al-Bidāya wa al-Nihāya fī al-Tārīkh, 14 vols. (Cairo: al-Saʿā da Press, 1932), 13:302Google Scholar; Laoust, Précis de Droit d'lbn Qudāma, introduction, xlviii.
52 Shams al-Dīn ibn Qudāma, al-Sharḥ al-Kabīr ʿala al-Muqniʿ, published in the margin of al-Dīn, Muwaffaq, al-Mughnī, 4:49–51Google Scholar.
54 In addition to al-Tirmidhi (see n. 48), Jabir's hadith occurs in al-Bukhārī, Abū ʿAbdallāh, Saḥīḥ al-Bukhāri, 3 vols. (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArab ī, n.d.), 3:174Google Scholar; in Muslim, Abū al-Ḥusayn, Saḥīḥ Muslim, ed. al-Bāqī, Muhammad Fuʾād ʿAbd, 5 vols. (Cairo: Dār Iḥyāʾ al-Kutub al-ʿArabiyya, 1955), 3:1221–22Google Scholar; and in Ḥanbal, Ibn, Musnad al-lmām Aḥmad (Beirut: al-Maktab al-Islām ī, 1405 A.H.), 3:299Google Scholar.
57 The hadith in question is lā sharṭān fț bayʿ (A sale with two conditions is inadmissible); it occurs in al-Tirmidhi, Sunan, 3:527. In proscribing two stipulations in a sale contract, the late Hanbalis follow Ibn Hanbal and their classical authority, al-Khiraqi; see Aḥmad, ʿAbdallah ibn, Masāʾil, 277Google Scholar; al-Khiraqī, Abū al-Qāsim, Mukhtaṣar al-Khiraqī, ed. al-Swāwīsh, Muḥammad Zuhayr (Damascus: Muʾssasat Dār al-Salām, 1378 A.H.), 89Google Scholar.
59 Taqi al-Dīn Aḥmad ibn Taymiyya (d. 1328) lived in Cairo and Damascus under the early Mamluks. In his legal thought, Hanbali law attains the culmination of its development, which had made a fresh start with the Damascene legist Muwaffaq al-Dīn ibn Qudāma (d. 1223). A formidable thinker and a prolific writer, Ibn Taymiyya's corpus includes his multi-volume treatise of jurisprudence, Fatāwā Ibn Taymiyya, 5 vols. (Cairo: Kurdistan Press, 1326–29 A.H.Google Scholar) and a fundamental work on the principles of Islamic government, Al-Siyāsa al-Sharʿiyyafț Iṣlāḥ al-Rāʿ ī waʾl-Raʿiyya (Cairo, 1322 A.H.). See Laoust, Essai sur les doctrines sociales et politiques.
61 Such Hanbali liberalism in the recognition of the parties’ autonomy of contract has prompted de Bellefonds to seek a rapprochement between Hanbali and Western law: “Ainsi, le droit hanbalite a donné à la règie de l'autonomie de la volonté une portée qui n'est pas loin d'atteindre celle qu'elle a acquise dans les systèmes occidentaux restés les plus attachés au libéralisme du XIX siècle.” Bellefonds, De, Traité de droit, 1:228Google Scholar.
63 In illustration of the contemporary relevance of the Hanbali position, it is instructive that Saudi Arabia, whose legal structure remains of Hanbali orientation until the present day, integrates foreign laws into its legal system using their non-contrariety with the sacred texts as a sufficient ground for their admissibility. The Explanatory Memorandum to the Law of Companies of Saudi Arabia states: “In drafting these regulations, it was imperative … to borrow suitable provisions from regulations of other countries…. They (the borrowed provisions) do not contradict any (Qurʾanic) Text or (Prophetic) Tradition.” Quoted in al-Ṣamdān, Aḥmad, Contracts’ Conflict Rules in Arab Private International Law (University Microfilms International, 1981), 76Google Scholar.
64 Ibn Qayyim al-Jawziyya (d. 1350), the outstanding disciple of Ibn Taymiyya, pursued his master's renovation of Hanbalism in both domains of private and public (constitutional) law. His two most renowned works are a treatise on legal methodology, lʿlām al-Muwaqqʿin ʿan Rabb al-ʿ Ālamin, 4 vols. (Cairo: al-Munīriyya Press, n.d.Google Scholar), and one on the theory of constitutional government, Al-Ṭuruq al-Ḥikmiyya fț al-Sīyāsa al-Sharʿiyya (Cairo, 1317 A.H.). Laoust, Henri, Le Traité de Droit Public d'lbn Taimīya (Beirut: Institut François de Damas, 1948), introduction, xlGoogle Scholar.
68 Closely associated with this openness to history and practice is the differential status of the validity of the two fundamental divisions of Shariʿa—devotional law (ʿibādāi) and civil law (muʿ āmalāt— in Hanbali thought. The licitness of the specific performances that constitute ritual prayer, the fast, and he pilgrimage (ṣalāt, siyām, ḥajj) is grounded in explicit regulations of the devotional law: any addition o or deviation from these regulations is illegal in principle. In the concise expression of Ibn Qayyim: “Invalidity (al-buṭlān) is the rule in devotional matters (ʿibadāt) unless there is proof to the ontrary.” In civil transactions however, he continues, the opposite principle prevails:
Validity (al-ṣiḥḥa) is the rule in contracts and transactions (muʿ āmalāt) unless there is proof of invalidity and prohibition…. Validity is the rule in contracts and stipulations (al-aṣlfī ʾl-ʿuqūd wa ʾl-shurūṭ al-ṣiḥḥa), except those invalidated r forbidden by the Lawmaker: This is the correct ruling. For the verdict that invalidates them is a verdict of rohibition and indictment, and it is obvious that there could be no prohibition except of what God and His Prophet prohibited, nd there could be no indictment except of what God and His Prophet indicted its perpetrator. (Qayyim, Ibn, lʿlām, 1:299Google Scholar)
69 Given the importance Hanbali jurists accord to subjective motivation in determining the validity of legal acts, their condemnation of the techniques which employ the letter of the law in order to violate its spirit in the case of usury is understandable: “[The legal weight of intentions] is proof that if one intends to conclude a usury contract in the form of a sale, then usury has been committed despite the form of sale”; Qayyim, Ibn, lʿlām, 3:98Google Scholar.
70 This attitude is exemplified in al-Shafiʿi' recognition of the declared intent in legal transactions nd his belittling of implicit and hidden motives as having no legal effect:
No contract is nullified except due to its own terms… Sale contracts are not nullified on grounds of pretext or bad intention (niyyat sūʾ)… Thus, if a man buys a sword intending to kill with it, the sale is permissible; though the intention is not admissible, it does not invalidate the sale…. The Book followed by the Sunna and the general judgment of Islam all indicate that contracts have legal effect according to their manifest content and are not invalidated by the intention of the parties. (al-Shāfiʿī, Muḥammad ibn IdrīsKitāb al-Umm, 7 vols. [Cairo, 1325 A.H.], 7:270Google Scholar)
72 No doubt the present conclusion rejoins recent efforts in Islamic studies to unearth the dimension f mobility in the millenary history of Islamic law which dear and long-held conceptions have tended o obscure from the perception of even the best scholarship. Thus J. Schacht: “But from the fourth/tenth entury onwards, and until the growth of legal modernism in the present generation, there has been no fficial scope for independent new developments, and what development there has been consists, on principle, nly of interpretation and application” (Schacht, Joseph, An Introduction to Islamic Law [Oxford, 1962], 202Google Scholar). Such conceptions are put to the test and emerge as highly questionable in the works of among others) Hallaq, Wael, “Was the Gate of Ijtihad Closed,” International Journal of Middle East tudies 16(1984): 3–41CrossRefGoogle Scholar; Johansen, Baber, The Islamic Law on Land Tax and Rent (London, 1988Google Scholar); and erber, State, Society, and Law.
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