Ch3.qxp
12/8/2007
12:28 PM
Page 65
Characteristic features of SharÊ‘ah 65 transforms the permitted act of selling into the forbidden act of ribÉ. In both of these examples, the acts are designed so as to circumvent the rules of SharÊ‘ah by violating their intention. The majority of jurists, including MÉlikis and ×anbalis, who validate the doctrine of blocking the means (sadd al-dharÉ’i‘) have rejected such stratagems but the ×anafis and ShÉf ‘Ês have upheld them as legally valid and recognize the legal consequences that flow from them.36 The proponents of such stratagems have expatiated and written extensively on the subject. A new and extensive chapter was thus being written, known as al-Íiyal wa al-makhÉrij, or legal stratagems and dodges. ‘Indeed a mastery of this particular subject’, as al-‘AlwÉni observes, ‘became a sign of the faqÊh’s erudition and academic pre-eminence.’37 Al-ShÉÏib has stated the MÉliki position as follows: the Lawgiver enjoins that the intent of the compos mentis (mukallaf ) behind his acts should be harmonious with the purpose of the law. ‘Anyone who seeks to obtain from the rules of SharÊ‘ah something which is contrary to its purpose has verily violated the SharÊ‘ah and his actions are null and void.’38 The ×anbali scholar, Ibn Qayyim al-Jawziyyah, has substantially upheld the same position.39 Al-ShÉÏib elaborates: legal acts are not intended for their own sake but for their meanings (ma‘Éni) which contemplate realization of benefits. The benefits in devotional matters are seeking closeness to God and submission to Him in body and mind. If these benefits are not sought, even the ‘ibÉdÉt are vitiated. A Îalah, for example, which is done merely for ostentation (ri’É’al-nÉs) is not valid.40 The rulings of SharÊ‘ah regarding the ÍalÉl and ÍarÉm generally involve both the acts and their underlying intentions. A Muslim must therefore not seek to legalize for himself a ÍarÉm even if he obtains a judicial decree to that effect. This conclusion is based on the following ÍadÊth wherein the Prophet, peace be on him, stated: I am but a human being. When you bring a dispute to me, some of you may be more eloquent in stating their cases than others. I may consequently adjudicate on the basis of what I hear. If I adjudicate in favour of someone something that belongs to his brother, let him not take it, for it would be like taking a piece of fire.41
ϥϮϜϳ ϥ ϢϜπόΑ Ϟ ˷ όϠϓ ˬ˷ϲϟ· ϥϮϤμΘΨΗ ϢϜϧ ήθΑ Ύϧ ΎϤϧ· Ζϴπϗ ϦϤϓ ˬϊϤγΎϣ ϮΤϧ ϰπϗ΄ϓ ξόΑ Ϧϣ ϪΘ˷ϴΠ ˷ ΤΑ ϦΤϟ .έΎϨϟ Ϧϣ Δότϗ Ϫϟ ϊτϗ ΎϤϧΈϓ ϩάΧ΄ϳ ϼϓ ΎΌϴη ϪϴΧ ϖΤΑ Ϫϟ