OF THE MÄLIKIYYAH – 5
We complete herein our cursory survey of the root-principles founding the MÄlikiyyah’s juristic methodology.
Principle XVIII: Blocking the means to evil (Sadd adh-dharÄ’i`)
DharÄ’i` is the plural of dharÄ«`ah, the means, which is a matter outwardly permissible convoying however to the prohibited.
The MÄlikiyyah have gone to great lengths in paying regard to the dharÄ’i` (through which evil is actualized) and blocking the means to juristic ruses (hiyal), more than any other school. For them the underlying purpose is more important than mere form, and misrepresentation by conduct is treated on par with verbal misrepresentation.
Ruses are in fact a means to voiding the Lawgiver’s purpose. For example, the marriage by a person who legalizes a woman’s private parts to her former husband who divorced her irrevocably is vetoed by the school. MÄlik said: ‘He is not permitted to marry her, whether or not she and her former husband are aware of his “legalizing” purpose. Conversely, if the new husband did not intend any legalization of her private parts, the marriage is permissible even though the wife might have consciously intended that.’
Similarly, the MÄlikiyyah have prohibited, pursuant to this principle of blocking the means to evil, the deferred sale known as bay` al-‘Ä«nah wherever it results in the combination of sale and loan or in a loan attracting an extra benefit, each of them forbidden by the Lawgiver in explicit texts, even though, formally, it might pass judicial scrutiny (and was as such approved by other schools).
That is the scenario where, say, x sells two articles for 200 gold coins payable in one month and then purchases one of them from y for 100 gold coins cash. X will thus be owed 200 gold coins: 100 of them as consideration for the article he has not taken back, which is a sale, and the remaining 100 as loan, since the article it was exchanged for has been taken back by him in return for cash. It is but a ploy used by someone, y, “the purchaser”, who, in need of money, cannot raise a good loan (qard hasan) and resorts to the fiction of purchasing a sale article. It is as if no sale ever took place, and the “purchaser” received a loan of 100 gold coins upon entering the contract, to repay it with 200 gold coins after one month. That is the combination of sale and loan.
The other scenario is where x sells an article for 100 gold coins payable in one month’s time and purchases it back for 50 gold coins cash.
Here, the sale article returns to x, “the vendor”, who in actual fact lends 50 gold coins at the time of concluding the contract to receive the benefit of extra 50 gold coins after one month.
Bay` al-‘Ä«nah is a species of selling what one does not own. In the Muwatta’ we find Ibn ‘Umar saying to a man who comes to another and says, ‘Buy such-and-such and I will then purchase it from you for such and such a profit’, ‘Do not sell what you do not have.’
The MÄlikiyyah likewise acted by the principle to forbid tawarruq, as it exploits people’s acute need to exchange money for money at a profit.
Whereas Ä«nah refers to the process of purchasing the commodity for a deferred price and selling it for a lower spot price to the same party from whom the commodity was purchased, tawarruq or monetization refers to the process of purchasing a commodity for a deferred price determined through musÄwamah (bargaining) or murÄbahah (mark-up sale) and selling it to a third party for a spot price so as to obtain cash.
Yet “Islamic” banks have turned it into a retail product for ordinary customers to use.
Indeed, had this principle been applied as it used to be when Islam and scholarship were serious realities, the murÄbahah as practiced by “Islamic” banks would have been prohibited, too, for it is unlawful Ä«nah, i.e. a transaction the MÄlikiyyah forcefully combated and al-QÄdÄ« ‘IyÄd termed “sheer usury” (ribÄ surah) in At-TanbÄ«hÄt.
The validity of acting by this principle of blocking the means to certain or probable evil in legal judgments is founded on several Qur’Änic ÄyÄt.
For instance, Allah the Exalted says: «Do not curse those they call upon besides AllÄh, lest that makes them curse AllÄh in animosity, without knowledge» (SÅ«rah al-An`Äm: 108). Cursing the idols of associationists is not unlawful in itself, nay, it is even an act of attaining nearness to Him, but it has been interdicted to block the path of associationists cursing Allah, Mighty and Majestic is He.
In a similar vein, Allah the Exalted says when addressing Adam and Eve: «But do not go near this tree, lest you become wrongdoers» (SÅ«rah al-A`rÄf: 19). The tree itself is not forbidden, rather eating from its fruit, but since drawing near it is a means to falling into the real target of the prohibition, it, too, was prohibited by Allah, the Mighty and the Majestic, saddan lidh-dharÄ«`ah.
Principle XIX: Presumption of continuity (IstishÄb al-hÄl)
IstishÄb means in Arabic escorting or companionship, and hÄl means state or condition.
The import of this root-principle (also called al-barÄ’ah al-asliyyah, the pristine state of affairs) is the presumption of continuity of the original state (be it positive or negative) until the contrary is established by evidence.
The existence or non-existence of facts proven in the past are presumed to remain so, for lack of evidence establishing any change.
It is a rational proof that may be resorted to in the absence of other indications. Thus, by virtue of this root-principle, there can be no punishment for a matter without a law proscribing it, since the Revealed Law does not have retrospective effect.
Muslims cannot be made accountable for any defective transaction engaged in by them prior to its legal interdiction, since theirs was a pristine state of unaccountability.
An application of this root-principle is that, once ownership of a property is established in a person’s favour, it endures for him and does not shift away from him save by virtue of a contrary proof of transfer of ownership, due to the presumption of continuity of the original state of his ownership thereof.
The same holds true of the marital status of spouses, until dissolution of marriage.
Proof of this root-principle is found in Allah’s statement, may He be Exalted: «Whoever is given a warning by his Lord and then desists, can keep what he received in the past and his affair is AllÄh’s concern» (SÅ«rah al-Baqarah: 275).
As the Muslims feared for their many possessions acquired by them through usury prior to its outlawing, Allah clarified to them that there was no harm in that, given their pristine state of unaccountable innocence, and that harm only attached to ill-gotten property tainted by ribÄ subsequent to its proscription.
There is no taklÄ«f (legal accountability) without a legislation to that effect: «AllÄh would never misguide a people after guiding them until He had made it clear to them how to have taqwÄ. AllÄh has knowledge of all things» (SÅ«rah at-Tawbah: 115). The mu’minÅ«n who regretted supplicating on behalf of associationist relations of theirs who had passed away were thus reminded by Allah that their pristine state of unaccountability prior to the prohibition of any such supplication had continued unabated until the prohibiting Revelation was sent down, exonerating them from any (retroactive) culpability.
Principle XX: Partial adoption of the evidence corroborating the juristic opponent’s view (MurÄ`Ät al-khilÄf)
Literally, “observing” or “directing attention” or “paying consideration to disagreement” in the mas’alah.
It means that the person inferring a legal judgment acts by the evidence (dalÄ«l) supporting his juristic opponent in the mas’alah, in such a manner as not to void his own evidence entirely. He does so because of the preponderant weight and cogency he senses in the evidence thus paid regard to. As a result, the mujtahid takes such evidence into the reckoning without ignoring it altogether.
Another definition of this root-principle is: A mujtahid faced with a novel occurrence, after it has factually materialized, acts by the necessary implication of his own evidence in one respect, and by the corollary of another mujtahid’s evidence in another respect, so long as such conflicting evidence is cogent in his view.
What is the proof in support thereof?
1. Evidence in the Law that it is obligatory to act by what has greater probative force.
2. The Prophet’s, SallallÄhu ‘alayhi wa-Sallam, statement: “The child from zinÄ belongs to the matrimonial bed, and the adulterer only has stones”, meaning nothing (though it has also been interpreted, less cogently, as lapidation). If, then, the husband is absent from the matrimonial bed and the wife commits adultery with a stranger, the resultant child is attached to the matrimonial bed (as long as the husband does not swear the oaths of mutual repudiation, or in our times DNA testing establishes lack of his paternity for those who countenance its legal use) and the adulterer has no right over him. When one such incident famously occurred, with paternity of a child disputed between Sa`d b. AbÄ« WaqqÄs and the father of his, SallallÄhu ‘alayhi wa-Sallam, wife Sawdah, the mother of the child being a slave-girl of Zam`ah, the Prophet, SallallÄhu ‘alayhi wa-Sallam, accordingly instructed that the child be attached to Zam`ah, which would have made him a mahram with full access to Sawdah, and that Sa`d had no right over him. At the same time, on noticing a resemblance between the child and ‘Utbah b. AbÄ« WaqqÄs, who in the days of JÄhiliyyah had had a long-term association with Zam`ah’s slave-girl, and having urged Sa`d to claim paternity over the child after his birth, he took the said resemblance – one of the evidentiary elements – into consideration and ordered Sawdah to veil herself from the child, despite being her brother born in her father’s wedlock [He never saw her until he met his death]. In other words, the Prophet, SallallÄhu ‘alayhi wa-Sallam, acted by the dalÄ«l of the resemblance specifically as regards the rules of hijab, while acting by the matrimonial (or we could say quasi-matrimonial) bed for the rest.
Some savants have refuted the soundness of this root-principle, asserting that a mujtahid is interdicted from yielding to the evidence of a fellow-mujtahid to the detriment of his, and that what he is enjoined to do is following the evidence whenever it is uniform or what is overall weightier in the event of multiple evidences.
Here are some examples of the MÄlikiyyah applying murÄ`Ät al-khilÄf:
1. If a marriage is one the invalidity of which is disputed, such as a marriage without a guardian, they hold that inheritance is nevertheless established by it and that a divorce is needed to dissolve it, i.e. they act by their evidence that such a marriage is invalid whilst acting by the corollaries of the opposite view held by the Hanafiyyah.
2. The MÄlikiyyah do not permit a salam (= sale with advance payment of the price) where delivery of the sale article is immediate. Delivery of the salam article must be deferred, to fifteen days minimum, otherwise it must be rescinded as stated in the Mudawwanah. ImÄm ash-ShÄfi`Ä« permits a salam with immediate delivery of the merx. In another narration from MÄlik, he endorsed a salam where delivery of the article was deferred to two days only murÄ`Ätan li’ll-khilÄf, as affirmed by Ibn HabÄ«b (Cf. Al-BayÄn wa at-TahsÄ«l).
3. The MÄlikiyyah maintain that the contract of pledge is binding simply upon its conclusion, i.e. neither parties can resile from it at will, and that taking physical possession of the pledged article perfects the contract without being a condition of validity thereof, whereas the Hanafiyyah and the ShÄfi`yyah adopt the contrary view that physical possession of the pledged article is a condition of contractual validity of the pledge, failing which no binding pledge can be soundly concluded. It follows from the MÄlikÄ« position that the pledgor cannot dispose of the pledged article as soon as the contract is concluded, whether or not he has transferred possession thereof to the pledgee. Taking however into account the said dissenting view of Hanafiyyah and the ShÄfi`yyah, they rule that the wealthy pledgor may dispose of the pledged article, by sale, donation or charitable devolution, in the interval between the conclusion of the contract and the pledgee’s receipt thereof into his possession, and that the debt he owes is then exacted from him.
4. As for the mas’alah of a donor disposing of the donated property prior to the donee taking possession thereof, the MÄlikiyyah similarly state that the contract of donation is binding upon its mere conclusion, and that possession of the donated article by the donee perfects the contract without being a condition of validity thereof. They base that ruling on cogent textual authorities from the Book and the Sunnah. The Hanafiyyah and the ShÄfi`yyah, however, hold that donation is validly binding only once the donee has received it into his possession. As a result, murÄ`Ätan li’ll-khilÄf, Ibn al-QÄsim has asserted, about someone saying to another, ‘Take this maintenance and distribute it in the path of Allah, meaning warfare,’ and his addressee replying, ‘I know of a needy woman here,’ so the former says, ‘fine, give it to her’: “It does not please me if he makes its use in the path of Allah compulsory; and if he does that, he is not liable for making it good.’ Strictly following their own evidence, in fact, the MÄlikiyyah should have held that the contract had already been perfected upon its conclusion, and that the donor was prevented from transferring ownership thereof to a new donee, the needy woman. At the same time, as far as the rules on liability for making good property lost, damaged or destroyed in one’s hands, he relieved the donor of liability pursuant to the mere conclusion of the contract, regardless of whether the donee had taken possession of the property.