A synopsis of the variant views and opinions, chock-full of quotes, and ended with the more logical of reasonings behind the “2 women to 1 man” in testimony rule.
More can be said on the reasoning behind the last opinion stated, but for that stay tuned.
Tradicionalista @ Women and Testimony in Traditional Islamic Law
Last time we looked at Fiqh texts we mentioned:
If we look at them substantially, they consist of:
- textually gleaned understandings (i.e. from Quran and Hadith)
- issues of consensus
- opinions of the companions an/or their students
- opinions of the “Imam” of that particular school
- and at times opinions of the leaders of that Imam’s school after him
This time I’d like to discuss each of these in brief:
1. Textually gleaned understandings
This first category is made up of understandings taken from the texts of the Quran and Sunnah. Both of these contain texts which can generally be divided up into three categories:
A. Texts which are explicit and unequivocal in nature, i.e. they will not and cannot hold more than one meaning without deviating from their true linguistic meanings and invoking some type of heterodox interpretation. This category is know as a “Nass” (نصّ).
And example of this would be the verse (وَآتُواْ حَقَّهُ يَوْمَ حَصَادِهِ ) “And give its right the day of Harvest…” 6:141. The meaning taken from this verse is that zakat is due on crops the day they are harvested. No one can rightfully construe this verse to mean something other than that apparent without invoking an interpretation that would not only be foreign to the corpus of Islamic legal understanding but to the Arabic Language as well.
An example of deviant misinterpretation of the Quran would be construing this verse (إِنَّ اللّهَ يَأْمُرُكُمْ أَنْ تَذْبَحُواْ بَقَرَةً ) “…God orders you to slaughter a cow…” 2:67, which was directed to the Children of Israel at the time of Moses to mean that God has ordered the slaughter of Aisha, the wife of the Prophet Muhammad. Such an interpretation is neither logical nor in accordance with sane readings of the texts legally or linguistically.
B. Texts which contain more than one meaning, yet one of these is presumed stronger than the other. This is called a “Zahir” text (ظاهر).
An example of this would be the hadith narrated by Muslim:
“For every forty sheep, a sheep.” (في أربعين شاة شاة)
The apparent meaning of this hadith is that a Shepard who owns forty sheep must pay one sheep as Zakat. Other scholars said that the meaning of this hadith is that he must pay the price of one sheep as zakat, not that he is obligated to pay the actual sheep. Regardless of Juristic polemics surrounding the issue at hand, when analyzed singularly the strength of first meaning is more presumptuous than that of the second.
C. Texts which contain multiple meanings, it being impossible to designate one of these meanings without an external texts or meaning to help determine it. This type is called “Mujmal” (مجمل). The process by which it is clarified is called “Bayan” (بيان). It is then known as a “Mubayyan” (مبين) text.
For example the 3rd verse of Surah al- Mujadilah
(وَالَّذِينَ يُظَاهِرُونَ مِن نِّسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِّن قَبْلِ أَن يَتَمَاسَّا)
“Those that commit Zihar from their wives then return to that which they said must free a slave before they reunite…”
The description of the slave here is an unknown, is it a believing slave as mentioned in other verse (4:92) or not? Does a slave who is impaired count? and so on and so forth. Some would say that in this instance we must look at similar instances in the texts, and judge the ambiguity of this text by the explicitly of the others. Other disagreed.
The point in all of this is that the multiplicity of opinion based on B & C is found in works of Fiqh, and fiqh texts become the junction of linguistic, inductive, and logical arguments; these all leading to the categories following this first one.
More later Inshallah…
Fiqh texts are made up of various components:
I. If we look at them compositely they contain:
II. If we look at them substantially, they consist of:
III. And if we look at them structurally then they consist of:
With the latter being pretty obvious, the rulings that were expressed throughout those chapters, etc . and compose “Fiqh” were gathered to create a new form of text: al-Ashbah wa ‘l-NaZa’ir. These texts were not categorized like fiqh texts, even though they deal directly with the same substance of fiqh. Instead “ashbah” or “semblances” and “naZa’ir” or “relations” were correlated. Rulings that resemble each other were analyzed along side each other, and others which were related but did not have the same outcome were as well. From these the science of Qawaid Fiqhiyyah developed (for an excellent article on the subject look here). Some of these works were intra-school works, while others were comprehensive of different schools.
Other texts were created from Fiqh texts as well, such as the texts that deal with the “Mufradat” of a particular school and its Imam. Perhaps the most famous of all Imams in his “Mufradat” (i.e. issue in which he held a singular opinion) is Imam Ahmad Ibn Hanbal. This was for several reasons, one being that he was the latest of the four Imams to have a codified school gain prominence, as well as the fact that he was the one Imam from the four that narrated the most hadith, in addition to his keenness to collect the opinions of those scholars that preceded him, especially those of Ahl al-Hadith.
A third type of text was created out of fiqh texts, that of “Furuq” or differentiation between rulings, definitions, and exceptions. These works, although few in number, detail the differences between seemingly similar things, their exceptions, and the reasoning behind that. These texts are closely related to those of “Qawaid fiqhiyyah” and as such many of the early authors of such texts were those that gained prominence for their “Qawaid” writings in both fiqh and Usul.
More Fiqh 101 to come, InshaAllah…
Then there is the doctrine of precedent, one of my favourite doctrines. I have managed to apply it at least once a year since I’ve been on the Bench. The doctrine is that whenever you are faced with a decision, you always follow what the last person who was faced with the same decision did. It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford, said: “The doctrine is based on the theory that nothing should ever be done for the first time.”
- Lionel Murphy (1979), The Responsibility of Judges
“Lawyers operate on a day-to-day basis at a pragmatic level of abstraction which is different to the philosophical level of a jurisprudent. A legal expert system should be built upon a model of legal reasoning, but this model need not conform to any jurisprudential theory about the nature of law.”
- James Popple (1996), A Pragmatic Model of Legal Reasoning, P.63
Precedent, or rather the blind-following thereof, presumably exonerates the public (or at least some of its members) from rising to the challenge of critical thinking. While it functions as a social safety-net for most, disregard for circumstance and social relevance in both public ruling and personal choice disrupts overall justice; justice as understood through either the lenses of custom and convention or those of accommodation and duress. The more drastic the change the more drastic the disruption, and thus the farther the public strays from the spirit of the law, while still monotonously following its letter.
Ibn ‘Ashur, who was arguably one of the greatest scholars of the past century, followed in the tradition of al-Shatibi and al-’Izz with his book Maqasid al-Shari’ah.
Maqasid al-Shari’ah, a concise and intriguing work in its original Arabic, it is now available in the English from IIIT. For a review of the translation look here. Hat tip to Dr. Mahmoud El-Gamal who posts on reinvestigating legal objectives. He links to this article by Dr. Robert Crane, which mentions a bit about Ibn ‘Ashur and the Maqasid. The author cites the edition of al-Maqasid in Arabic saying:
“…His major work, first published in Arabic in 1946, was translated and annotated for a modern reader with incredibly thorough footnotes by Mohamed el-Tahir el-Mesawi under the title Ibn Ashur, Treatise on Maqasid al Shari’ah…”
While al-Mesawi’s edition is probably one of the better prints of the book, the footnotes are hardly “incredibly thorough”. There is however a another edition of this book which fits this description; the one annotated by Shaykh Muhammad al-Habib Bin Khujah and printed by the Ministry of Islamic Affairs, Qatar.
Bin Khujah (to my knowledge one of the last living students of Ibn ‘Ashur) has done an impeccable job of presenting the Maqasid of his teacher; servicing his knowledge, memory, and legacy.
This edition is printed in three volumes:
The third volume of this set services the knowledge of the Imam; in doing so Bin Khujah depends on two of the earliest prints of this work, as well as the personal notes of Ibn ‘Ashur himself. He compares the two prints (in that the original manuscripts were not available to him), adds the author’s personal notes to the marginalia, as well as adding his own notes to issues he sees pertinent.
One of the major contributions that this edition make is the attribution of the texts referenced by Ibn Ashur back to their sources, including al-Shatibi’s al-Muwafaqat, al-Qurtubi’s Jami’, Ibn ‘Arabi’s Ahkam, as well as various works in fiqh and Usul. Ibn Ashur’s other seminal works are referenced as well, such as his tafsir al-Tahrir wa ‘l-Tanwir and his “Usul ‘l-Nizam ‘l-Ijtima’i fi ‘l-Islam”. At times Bin Khujah will even relate verbatim some of these referenced texts, in an attempt to give the reader more context of the original. This is in addition to explaining some of the terminology found in the book that might be lost on the non-specialist.
For those concerned with the area of business, finance, and economics, one of the latter portions of the book would be of interest “Maqasid ‘l-Tasarrufat ‘l-Maliyyah”. To give you an idea of the importance of this chapter he says:
As I mentioned in the previous chapter, the most important objective here is preservation and economization of this nation’s wealth. This nation’s wealth, whence viewed as a whole, is preserved through regulating the manners by which it is managed generally, in addition to the manners in which individual wealth is preserved and managed. Preservation of the whole depends on preservation of its components; the majority of Islamic legal principles dealing with wealth relate directly to the preservation of individual wealth, which in turn preserves the wealth of the nation; there being a direct correlation between the benefit of personal wealth and the benefit of public wealth in relation to the prosperity of the nation.
This section of the book is deserving of further analysis by Muslim economists, in that (in the eyes of this non-specialist) it presents a far better survey of Islamic views related to economics than what has been presented so far.
In conclusion this is probably the best print of Maqasid al-Shari’ah so far, and an indispensible one at that in light of the value added by Bin Khujah’s service to the book.
A myriad of Muslim groups are presented to the New Muslim/Newly learning Muslim when he decides to be part of “Something”. One thing that a new Muslim is sure of upon accepting Islam is his lack of knowledge about Islam.
We can find many verses that deal with the issue of ignorance, and its cure.
One such verse is
“Ask those of knowledge is you do not know…”
The Prophet is reported to have said
“Is not the cure for ignorance, asking a question?”
Given this scriptural precedent, asking questions is then something needed. Which interestingly, leads us to ask a question: “How do we go about asking questions?”
One thing that is for sure is that we are not supposed to ask so many questions that we create hardship for ourselves and others. We find hadith such as the following:
· “The greatest of Muslims in sin is he who asks about something that was previously permitted, and it is then forbidden because of his asking”
· “The only reason those before you were destroyed was due to their constant asking of questions and their differing with their Prophets.”
So what is it that we ask about, and what is it that we don’t?
And when asking, are each of us required to know detailed evidences to support the position that we hold or is it enough for us to follow another person whom we trust and respect in terms of piety and knowledge?
The form of following others in issues of the religion is known as “Taqlid”. Taqlid is a term that literally means to be fettered, similar to a beast of burden. In this sense, the one asking a scholar is fettered, i.e. restricted in his movement by the answer of that scholar.
However it is important to remember in this discussion that the issue we are talking about have to do with issues of fiqh and furu’, not with issues of belief, as all scholars are of the opinion that taqlid is haram in issues of belief, there being consensus on this principle.
In contemporary terms, we find many who claim to be making taqlid and many who claim that they do not.
Some people will espouse to you the necessity of having a shaykh and/or a Madhhab (school of Islamic legal thought). Others will deny these and say that no such thing is necessary, all one needs to do it read the Quran and Sunnah. Many of the latter group however, are incapable of doing so, and in the end of the day ask a scholar for interpretation. Those that give lip service to not having a Shaykh, not making taqlid, or following a madhhab in general end up doing the same in the end of the day. Many people that make this claim frequently throw around various labels such as Salafi, Ahl al Hadith, Athari, etc.
The problem is that while many that claim these labels assert the fact that they do not make taqlid (some viewing it as Haram) and deride those that allow taqlid, in fact contradicting their own methodology.
Those that mention taking a “Salafi” methodology in their approach to the religion, claim that their first and foremost reference is not only the Quran and the Sunnah, but the Quran and the Sunnah as understood by the Salaf, or the Pious predecessors (the first three generations of Islam after the Prophet).
So in the areas of Fiqh, if the Salafi Methodology is to take from the “Salaf” then none the Salaf (at least I don’t know of) have categorically forbade taqlid, especially for the laymen. Those narrations from some of the Imams that are conflated to mean that taqlid was prohibited must be looked at holistically in light of the actions and understanding of the same scholars that narrated them to us. So historically, it was only until the likes of al-Shawkani and Siddiq Hasan Khan did the opinion of taqlid being Haram come in vogue and was held as popular opinion representative of the “Salaf”.
Before this opinion came into prominence, the Scholars were of two camps:
- the 1st: those that saw that the door to ijtihad had closed, and as such necessitated some form of taqlid on everyone, basically saying that there will never be another unrestricted Mujtahid the likes of the four Imams.
- the 2nd: those that did not agree with the door to ijtihad having been closed, however they viewed people as one of three people:
1. A layman.
This person makes a broad form of taqlid, but not to a specific Imam, instead he follows the scholars of his area, those known for their knowledge and piety. It is not permissible for him to deride others for their following of fatwa, and obligatory on him to follow the scholars.
2. A student of knowledge.
This person makes taqlid to one school, so that he can learn the ins and outs of that school, its juristic reasoning and evidences, answer the questions of the laymen accordingly, and work his way to being from the third group which is…
3. The scholars.
These people do not make taqlid, in that they have the analytical ability to delve into the evidence and derive rulings. the lines between 2 & 3 can be blurry, as the majority of scholars allowed ijtihad to compartmentalize, so that one man may be a mujtahid in one issue of area, and yet a student or laymen in another.
Its a long discussion but this is the gist of it. For all practical terms, these two categorizations are more similar than they are disparate.
So as applies to anyone that claims to not be making taqlid, they are the same as everyone else, and in contemporary terms can be worse in some aspects. The reason for this being that in principle they should make taqlid to no one, yet end up idolizing scholars and callers, claim their opinions as binding, and then claim that they are not bound by taqlid. This is not only a contradiction in terms, but points to a very shallow understanding of what taqlid is and the various shades that it encompasses.
Of others that label themselves, Traditionalist students of Madhhabs (schools of Islamic Law), which include those of Salafi/Athari, Ashari, and Maturidi theological persuasions, are not found to have this contradiction for the most part. Even the scholars of Ahl al Hadith who were not proponents of a particular Madhhab, did not exhibit the very free-lance ijtihad that we find from many that claim the same name nowadays. Their proximity to the Hadith of the Messenger in both belief and practice instilled in them reverence for not only the texts and their meanings, but those that carried them. This spirit allowed them to formulate holistic solutions based on inductive research of the Prophetic sunnah and the precedent of the Salaf. Several of the Salaf have stated “I can never understand a hadith until I have narrated it from forty different ways.” Compare this to our very rudimentary readings of hadith (and in the English language at that) and the almost non-existent knowledge of precedent as presented in the Athar of the Salaf.
Those that label themselves as progressives, modernists, reformists, as well as other groups seem to take a much more liberal approach to issues of legality. While this in principle may be a more un-contradictory approach than the one above, it often proves to be an improvident one, in that the logical end to an open ended view that “taqlid is haram” (in belief or application) eventually will lead, in the end, to sinfulness, following of desires, and deviation through personal endeavor to please the self (nafs).
So a Muslim is between two extremes, idolization of the self & and idolization of others.
In areas of legality, the institution of taqlid helps to prevent the idolization of the self.
As TJ Winter rightfully states:
We are all a little like Pharaoh: our egos are by nature resistant to the idea that anyone else might be much more intelligent or learned than ourselves.
Idolization of others leads to the same, yet does so through a detour. Personal endeavor to please others, and have this fact recognized, is in the end of the day another attempt to please the self (nafs). While some claim that they merely have connections to scholars, and are not idolizing them, in all reality that is exactly what happens. Connections to a scholar become abominable when they are not accompanied with the proper attitude of virtue and benefit coming from Allah alone, no one else. This phenomenon is similar to what happened with the People of the Book and the extremes they went to in veneration and reverence of the Prophets, their followers, and especially their leaders after them. Most people that claim any “connection” to any “group” usually, not always, but usually will find themselves slipping into this. This is contrasted with affiliation to a school of Islamic law, which was similar, if not the same, as someone mentioning that they are alumni at a law school, or trained in a certain discipline. (see # 3 here for more). When such an affiliation goes beyond being a method to distinguish one’s origin, trade, or specialization, it becomes forbidden.
Bukhari and Muslim narrate from Jabir that
…once during a battle one of the Muhajirum pushed one of the Ansar. So the Ansari called “O Ansar!” so the Muhajiri then called out “O Muhajirun!”
The Messenger of God heard this and said “What is it with this call of Jahiliyyah (Ignorance)? … Leave it, for it is rotten!”
Even though these titles were bestowed on the companions of the Messenger by God himself, they became blameworthy when they were used for dividing the Muslims and causing dissension.
Idolization of the self & and idolizations of others both are paths leading to a form of shirk:
{أَفَرَأَيْتَ مَنِ اتَّخَذَ إِلَهَهُ هَوَاهُ وَأَضَلَّهُ اللَّهُ عَلَى عِلْمٍ وَخَتَمَ عَلَى سَمْعِهِ وَقَلْبِهِ وَجَعَلَ عَلَى بَصَرِهِ غِشَاوَةً فَمَن يَهْدِيهِ مِن بَعْدِ اللَّهِ أَفَلَا تَذَكَّرُونَ }الجاثية23
“Have you not seen he who takes his desires as a deity; God sends him astray after his having had knowledge, seals his hearing and heart, and places over his eyes a veil. Who will then guide him after God? Will you not take heed?” al-Jathiyah: 23
May Allah grant us the ability to worship him for his sake alone, and guide us to the correct path in all that we do. Amin.
In this last post, I brought up the issue of ‘Ilal or Rationale behind the rulings.
‘Ilal are similar to Ratio decidendi , the reasoning behind a decision. Now when speaking on the primary source of Islam, usually four are mentioned.
This is the standard presentation of these sources. However, Ibn Qudamah in his Hanbalization of al-Ghazali’s al-MustaSfa makes Istishab al-Hal (presumption of continuity) the fourth source, for two main reasons. The first is that Zahiris (Literalists) don’t accept Qiyas. Secondly, because there is a narration from Imam Ahmad that seems to agree with them (even though it is explained away later).
Back to the subject of ‘Ilal.
‘Ilal can be taken from all four of the sources above. Scholars of Usul and Fiqh mention that what we are after through identifying the sources of Islamic law is knowledge of what it is that God wants from us. If this is the case, it strengthens the presentation of the fourth source of Islamic Law being Istishab al-Hal (presumption of continuity), in that it is a method for knowing the precedent or custom that what prevalent before an incident was presented for ruling. Qiyas then seems to be more or a tool for applying the “why & what” more than a source for knowing “why& what”.
‘Ilal are known through several ways:
Number three of the above may seem a bit out of place, in that how can historical precedent be basis for a legislative ruling? The answer to this is that on the premise that all actions related to worldly life (i.e. they are not acts of religious devotion) are permissible, when we find that action X was not only not forbidden or disliked throughout the annals of Islamic history, but at times encouraged, we can then deduce, in the light of competing evidence that suggests ambiguously that action X is impermissible, that in fact it is not.
The same can be said for actions that are being claimed to be permissible or preferred. When we look to the past, and find not only did scholars not support the action, but invalidated it, prohibited it, or disavowed it, we can take from this that an unrestricted allowance of such action would not be in line with a holistic view of the Shariah, even though there may be competing evidence that suggests ambiguously that action X is permissible.
It is quite rare though for any ruling that is made through this process to be effected by government, essentially such a process will guide more moral, political, and social decisions than those related to positive law enacted by legislation.
This process of application is where the science of “Qawa’id Fiqhiyyah” come in, as a method in which to apply this presumption. “Qawa’id Fiqhiyyah” are interesting in that they in reality are a form of syllogism, being the second premise (containing the ‘Illah) to a first, and the resulting ruling the conclusion. The use of Qawaid Fiqhiyyah for the application of ‘Ilal would seem to diminish the problem of claiming a universally valid inductive argument by simply framing the result in a deductive argument and conclusion.
The question that still remains in my mind about ‘Ilal, is that the scholars of Usul state that there are ‘Ilal that are “Mujma’ alayhi”; there is consensus that they are ratio decidendi. However, when we separate them from their contexts or their obiter dictum, will they be fairly applied without having anything to contrast and compare them with?
Abu Muhammad @ Non-Skeptical Essays has written a very concise and enlightening post on Stare Decisis in Islamic Law, comparing it to the theory of Ijma.
Highlights:
it would probably amount to oversimplification if we think it sufficient to assume that Ijma’a is just a ‘consensus of scholars’
The disagreement, most of the times, is so harsh that many jurists (for instance al-Nazzam al Basri, the famous teacher of al-Jahiz) have explicitly denied it as a binding source.
Those who consider it binding define it in different ways, continue dividing it into various types (e.g. explicit and tacit Ijma’a) and sometimes consider its inter-dependence with other sources.There are two important facts that come forth if we analyse the gist of all these classical positions on nature of Ijma’a and its various claims throughout history. 1) Majority of classical jurists agree that for any consensus to become binding, there must exists an evidence (Sanad) from other sources and 2) Most of them find it practically impossible to know the positions held by entirety of scholars as they are scattered all over the world
And this is an excellent point:
Both these facts serve as limiting factors towards any possibility of establishment and claim of consensus upon a legal opinion. While the former limits the possibility of personal or state sponsered opinions becoming binding on collectivity of Muslims, the latter substantially limits the jurisdiction of Ijma’a by reducing it to very basic injunctions already derived from either Quran or Sunnah.
He continues:
These jurists, in their times, were no less reformists, desperately wanting consistency and methodology in application of Islamic law thereby striving to achieve congruence between Islamic methodology and socio-political philosophy of their times.
The bottom line is: The only way to reform Islamic law, so that it is completely reconciled with the modern political and social philsophy, is to figure out how our predecessors did it in the past.
The objective is indeed difficult and obviously requires contemporary scholars to once again (re)define categories of Islamic legal archetypes. A quick solution to the problem may be to understand binding of Ijma’a as demanding subordination to a rule upheld collectively by the highest legal forum of the land. Islamic tradition, in early stages, had already seen such a forum being confined to jurist Companions and later to the theoretical collectivity of independant jurists. In terms of English common law, it is something close to the doctrine of stare decisis and may well be the adherence of lower courts to the precedents set by full bench of the highest court in a Muslim country.
Some comments:
The reasons that you mentioned causing the authority of Ijma to become limited only show that in fact Ijma and Qiyas are not primary sources of Islamic law. The four sources were grouped in that manner to represent admissible evidence when dealing with a legal issue. However with the latter two dependent on the first two, they can hardly be said to be primary.
Some scholars of Usul, such as al-Tufi, explained the order of these sources in terms of nobility, not strength. In strength and proximity to certainty however, Ijma is rated #1, with the unambiguous texts of the Quran at #2. Reason being that Ijma cannot be abrogated while the Quran can.
It would seem that your above presentation of Ijma would suggest that it does not reach a level of certainty in its transmission, which is extremely plausible especially in light of difference you mentioned.
However, given the scale of Zann - Ghalabat al Zann - Yaqin presented in works of Usul, Ijmaa would by virtue of the number of authorities citing the same ruling given an induction based strength to that ruling (the ratio decidendi to your stare decisis) and providing us a with a high enough probability of truth to base judgement on.
That high probablility would only be further strengthened by the fact that for Ijma to exist it must have either an implicit or explicit basis in the Quran, Sunnah, or a combination of the two. Now this would not seem necessary in light of explicit unambiguous texts. But with the Quran as Abu Darda said “Dhu wujuh” or multi-faceted in meaning, Ijma helps to determine the predominant meanings of that ambiguity, and prevent misinterpretation and interpolation of implausible meanings.
Now as to your suggestion of redefining Islamic legal archtypes, one thing that Ijma does for us (and this is where I disagree with the analogy to stare decisis) is not so much give us a precedent to adhere to, but in more or less terms identify ratio decidendi of the ruling seperating it from the Obiter dictum attached to that ruling, which can at times carry very inapplicable connotations and impede progress in the application and understanding of Islamic law, especially when dealing with issues of custom and convention.
Going off of a search result inquiry that showed up in my wordpress dashboard, I thought I would briefly write on the various manners in which scholars categorized Islamic law.
#1 - Binary
Islamic law can be look at in a binary sense, i.e. with two main categories:
#2 - another binary form
Islamic Law can also be categorized into another binary form
In this categorization, law is looked at in the bigger picture, taking into consideration the basis for which the individual laws were formed. this is similar to the differentiation between postive and natural law.
#3 - Trinary
#4- quaternary
#5 - quinternary
#6 - septenary
This is all that comes to mind right now…. can anyone tell me the differences between these, and where would Jihad fit in in each category?
Generally, in terms of Islamic Law, all defects in a sales item are of two types. The first are those that occur naturally, for example selling a home with a faulty foundation or a car with a cracked engine head. The second type is those defects that are initiated by a legislative prohibition. An example of this would be selling a kilo of meat claiming that it was chicken, when in fact it turns out to be the “other white meat” or tying the udder of an animal so as to appear that it gives more milk. The effects that these defects have on the market price of the item for sale are to be considered when adjudicating. So someone who was sold a set of CD’s in which one CD was cracked or scratched may have the right to a replacement CD, but may not have the right to recover for damages, as the market price of the CD set is not adversely affected by one faulty CD and no ill intent can be determined in the sale of pre-packaged media.
A second consideration of existence is taken when considering the right of the buyer to recover for defects. Those defects that were present before the period of sale are, by consensus, valid causes for litigation and recovery. Scholars differed as to those that appear during the period of sale and before the sale is finalized; Malik saw that the buyer has three days to claim defect after which the claim must be dropped, in the case that the defect is of the type that does not appear except seasonally or except over a long period of time he allotted one year. An example of this would be the sale of an animal with Mange, the mange having been treated before the sales period but is known that without re-treatment it will reappear. The three day period was substantiated by a hadith (judged weak by the opposing opinion) and the period of one year by precedent found in the custom of the people of Medina. This application may be viewed as similar to the principle of Caveat Emptor in English Common Law although not synonymous.
The Majority (Abu Hanifah, al-Shafi, and Ahmad) saw no difference between the period of sale and that before it, allowing for claims indefinitely. They cite the principle “Presumption of Continuity” (Arabic: istiS-Ha_b al-Ha_l استصحاب الحال) with regards to the previous mentioned consensus.
When discussing the permissibility of selling an item “As is” scholars differed, holding three opinions. The first, held by the Hanafi and Hanbali schools, is that “As is” conditions are permissible, and as such liability can be disclaimed from every type of defect. The second opinion, held by scholars of the Maliki, Shafi, and Hanbali schools, is that liability can be disclaimed only from those defects that are unknown to the seller at that time. The third opinion, being an alternate opinion held by those mentioned in the second, is that liability can be disclaimed except in the case that they were known before hand. This third opinion is in reality a subset of the second, and as such consideration for only two opinions should be given.
Proponents of the first opinion cite a hadith collected by Ahmad that two men came to the Prophet having disagreed over inheritance that had since expired or dilapidated. After having been warned of the dangers of false litigation and the appropriation of another’s property wrongfully earning that person divine punishment in the next life, they agreed to forgive each other. At this the Prophet told them “Go then, divide your wealth, and be just to each other, then let each of you forgive the other.” The implied meaning of this hadith is that each of them after dividing the wealth in question would then forgive his partner for any defects found in his share, mutually disclaiming all liability. Those that held the second opinion however countered that this hadith is applicable to cases of inheritance, which in its self is not a commutative form of transaction. Proponents of the second opinion used case-precedent from the time of the Caliph Uthman, in which two men disagreed about a slave who had some defect that had been sold, the seller disclaiming all liability. When it became clear that the seller would not go under oath that he knew of this defect, the Caliph Uthman, acting as Judge in this case, ruled that the price paid must be refunded to the buyer by the seller and the slave returned.
