“Hiyal”: Definition

“Hiyal”: Definition

“Hiyal” in Islamic law can be described as falling into one of two general categories

 

The first: legal ruses, a ruse being defined as “a deceptive maneuver (especially to avoid capture)” this seems to conincide with the definition given by Muslim Jurists “…that which endevours to invalidate an obligation or make the forbidden permissible through an action which is not normally used for such nor legislated for it.”

 

The second: a diversion, i.e. something that diverts, in a legislated manner, some religious consequence from occuring.

As seen from the two above definitions, the latter is more general than the former. As such, we can see that not everything that is labeled as a “Hîlah” is necessarily impermissible. Some may be and some may not. Those that are not were called by some of the scholars “Makharij” or egresses/ ways out of a problem that faced a person. Muhammad ibn al-Hasan, the student of Abu Hanifah, had even written a book on this subject.

A note on the “Islamicity” of contracts

The general rule for all contracts, and especially in sales, is validity. None would be judged as invalid unless something was found deficient in the contract such as:

1- one of the contracting parties lacking legal capacity

2- one of the objects of contract containing Riba or Gharar

3- or the fact that the object of sale is expressing forbidden, such as alcohol or pork-derivatives,

4- or the fact that is has no real or nominal value, for example a grain of sand

5- or the time of contract is sacred and as such it is not permissible to contract during, such as after the call to prayer on Friday

This said the most you would have to look for in reality are stipulations of Riba or Gharar (being the other things mentioned are quite obvious to any Muslim). As long as these are not included in the contract, the contract is permissible regardless of its structure.

If this view was actually implemented in Islamic finance today, we would probably see a lot more innovation and creativity in financing solutions. However, the system currently in vogue is one that depends solely on medieval contract forms, and any new introduction must be related back to that small pool or medieval approved contracts.

Now some people will say that the reasoning behind this is that Umar, the second caliph of Islam, said “No one will contract business in our market unless he has learned the rulings surrounding sales.”

This narration at its face value seems to run in the face of the hadith of the Prophet “The greatest of Muslims in sin is the one that asked about some that was permitted and it is then forbidden because of his questioning.” How then do we reconcile between the two?

Well the easiest thing to do would be to say “We don’t, we are in no need of Umar’s statement when we have a hadith of the Prophet.” A more refined approach would be to look at the circumstances behind Umar’s statement, and if it applied generally to all transactions or specifically to a certain type.

Firstly, the former approach does have weight, because as a general principle, the statements of the Sahabah are not to be taken according to their general connotations, unlike the Hadith of the Prophet.

Secondly, there are two possible explanations for this: one is that this statement was made by Umar after he found people in the market who were selling at prices that harmed the overall benefit of the market, and threatened market health. Thus Umar’s preventing this person from trade was an act of trade regulation, based on the general principle of “preventing harm” and not one that was meant to be taken and generalized as a principle for all transactions; we can even say all facets of Islamic life. The other is that Umar meant that one must learn the general rules surrounding Riba and gharar, so as to protect himself from falling into them, not that a merchant has to learn rulings surrounding sales as laid out in Islamic law books.

Thirdly, the base ruling of all transactions is that they are permissible; this fact is agreed upon by all scholars except for Ibn Hazm of the Dhahiri School. Ibn Hazm held that all contracts must be approved of by Allah and his Messenger in order for us to use them. Even though the majority of scholars differed with Ibn Hazm in principle, they agreed with him in practice. This can be seen as mainly the product of the normalization period of Islamic law, which occurred between the 6^th to 8^th centuries. While this process has benefits in providing a redundant system for litigation and judicial procedure, it had a negative effect on legal research and to some extent social norms and acceptable practice, as everything was relegated back to a time that was affected by different socio-economic constraints. This system caused even more problems in the pre-colonial period, not allowing the legal systems of Muslim lands to adapt to the challenges that it faced from the rising economic power of Europe.

After these side points, the bottom line is that when looking for the “islamicity” of any contract, we do not need to look far, and many stipulations that were mentioned in the books of Fiqh (Islamic Law) for mentioned for the purpose of dispute resolution, not for product validation and creation.

Call them by their father’s names…

Recently I came across something that reminded me of a person I had known several years ago. Not that I really knew him well, but once we had a conversation that has stuck in my head till this day.
I had known of him for a while as Hayyan ibn Bayyan, but I wasn’t sure about his last name. So I asked him “…wasn’t it Bayyan or something?”
He laughed and said with a really painful look on his face, almost like he was forcing himself to do something against his conscience: “Yeh you know, that’s what I used to be called, but you know what I’m saying, My mom turned out to have had me out of wedlock, so I’m you know, Hayyan ibn Suzanne now.”

Besides this being completely disrespectful to one’s mother (for the simple fact that I don’t need to hear what your mother has or had been doing), it is also problematic from an Islamic legal standpoint for the following reasons:

Reason #1:
The general principle:
“Relationships of disbelievers are concurred and confirmed”

What this means is that when two people enter into a relationship before Islam, and social bonds are created, these bonds are not destroyed or re-formulated because of one of the two accepting Islam, and especially not when one of their children accepts Islam. Two people who were married before Islam do not have to renew their vows. Children born and attributed to their fathers are not re-attributed to others.

The proof for this is in the generalities of the Sunnah, in which we find that the Messenger of Allah did not delve into peoples past, asking who their fathers were or commanding them to confirm their lineage. It was a known fact that people fornicated before the time of Islam, some men even bringing numerous other men to impregnate their wives for them, in addition to other forms of relations that these people had in the Jhiliyyah times (see the hadith narrated by Aishah in Bukhari #4732).

This happened and was common knowledge, yet the Prophet did not ask people to test for their lineage nor to ask about the way they were sired. Instead the relationships of the Disbelievers were “left as they were”.
Because of this scholars of the legal tradition have reiterated this in the principle:
“Relationships of the Disbelievers are concurred and confirmed.”

Reason #1:
The hadith “The child is [attributed] to the bed”
(narrated by al-Bukhari #1912) the text of the hadith is as follows:

(…عَنْ عَائِشَةَ رَضِيَ اللَّهُ عَنْهَا قَالَتْ : كَانَ عُتْبَةُ بْنُ أَبِي وَقَّاصٍ عَهِدَ إِلَى أَخِيهِ سَعْدِ بْنِ أَبِي وَقَّاصٍ أَنَّ ابْنَ وَلِيدَةِ زَمْعَةَ مِنِّي فَاقْبِضْهُ قَالَتْ فَلَمَّا كَانَ عَامَ الْفَتْحِ أَخَذَهُ سَعْدُ بْنُ أَبِي وَقَّاصٍ وَقَالَ ابْنُ أَخِي قَدْ عَهِدَ إِلَيَّ فِيهِ فَقَامَ عَبْدُ بْنُ زَمْعَةَ فَقَالَ أَخِي وَابْنُ وَلِيدَةِ أَبِي وُلِدَ عَلَى فِرَاشِهِ فَتَسَاوَقَا إِلَى النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَقَالَ سَعْدٌ يَا رَسُولَ اللَّهِ ابْنُ أَخِي كَانَ قَدْ عَهِدَ إِلَيَّ فِيهِ فَقَالَ عَبْدُ بْنُ زَمْعَةَ أَخِي وَابْنُ وَلِيدَةِ أَبِي وُلِدَ عَلَى فِرَاشِهِ فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ هُوَ لَكَ يَا عَبْدُ بْنَ زَمْعَةَ ثُمَّ قَالَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ الْوَلَدُ لِلْفِرَاشِ وَلِلْعَاهِرِ الْحَجَرُ ثُمَّ قَالَ لِسَوْدَةَ بِنْتِ زَمْعَةَ زَوْجِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ احْتَجِبِي مِنْهُ لِمَا رَأَى مِنْ شَبَهِهِ بِعُتْبَةَ فَمَا رَآهَا حَتَّى لَقِيَ اللَّه)
“Aishah narrates: Utbah ibn Abi Waqqas had willed that his brother Sa’d ‘…the son of Zam’ah’s concubine is mine, so take custody of him.’ On the day Makkah was conquered Sa’d ibn Abi Waqqas took him, telling the people that his brother had willed from him to do so. ‘Abd ibn Zam’ah said: This is my brother and the son of my father’s concubine, he was born in his bed. They both proceeded to the Prophet, Sa’d saying to him ‘O Messenger of God, this is nephew, my brother willed for me to take custody of him’ at this ‘Abd ibn Zam’ah said ‘He’s my brother and the son of my father’s concubine, he was born on his bed.’ The Messenger of Allah then said ‘He is yours ‘Abd ibn Zam’ah’ He then said ‘The child is [attributed] to the bed and the fornicator is prevented’. He then said to Sawdah bint Zam’ah (the wife of the Prophet) ‘Cover yourself in front of him’ because of the resemblance that he saw in him (i.e. the child) to ‘Utbah; with this he never saw her until he died.”

[General meaning of the Hadith]
The bed signifies the marriage, so any child born is attributed to the “bed” it was born on, i.e. the child will be attributed to the husband of that woman whom he was born to. Therefore in the Hadith the Messenger of God attributed the child to Zam’ah. However, it is interesting to note that he also ordered his wife to cover in front of the young man, for the very fact that based on testimony and physical evidence (the boy’s appearance) there was a possibility that he actually was Utbah’s son and not that of Zam’ah. The Prophet then said “…the fornicator is prevented…” i.e. prevented from his claim.

[Variant opinions as to deductions from the Hadith]
Now consideration was made for the fact that a child may be born to a woman that has no husband as a result of illicit relations. Classical legal sources relate two opinions concerning this issue:

The first dictates that the child is attributed to the mother only, and not to the father. This taken from the latter part of the hadith “…the fornicator is prevented…” i.e. prevented from his claim, any claim made to the child. This opinion takes into consideration the generality of the statement, not the contextual circumstance.

The second states that the child since there was no marital relationship, and the woman was not married, the child can then be attributed to the father that claims him. This is based on the same latter part of the hadith, except that here consideration is given to the contextual circumstance of the statement, instead of its generality. So the hadith would here mean “No claim can be made of a child born to another man’s wife, however if the woman is not married the child may then be claimed.”

Therefore, if a man sires a child out of wedlock, knows that this is his child, claims him as such, and there are probable grounds for presumption and/or confirmation, then the child should be treated as his own, will take his name and will inherit from him. These grounds for claim would increase with confirmation through DNA tests and other forensic methods.

[Consideration for the Second Opinion]
This second opinion, even though it was a minority one amongst the scholars of the past, has both specific textual basis and agrees with the general principles of Islam that protect the Religion, Life, Honor, Lineage, and Wealth of mankind. In implementing this second opinion, we can see that none of these general precepts are harmed, and in fact some of them are helped. Islam is a religion that seeks to ensure stable lives for children, improve their mental health, and self-esteem. Islam, as embodied in its legal corpus and core principles of faith, seeks family integrity and strength, which leads to community integrity and strength. It then follows that this opinion is stronger in meaning and value, in that it draws from both general and specific evidences and their understandings. In conversations with several scholars, I was instructed that this opinion was best to be considered in the west, especially in light of the need for strong communities.

Actions of the some of the Salaf confirm these general considerations; Abu Bakr, while Caliph, after reprimanding two young people for illicit relations, married them to each other (al-Musannaf of AbdulRazzaq #12796); Umar is reported to have tried the same with two who had even had a child (al-Musannaf of AbdulRazzaq #12793), yet one party refused.

The point is that considerations were made for the two people that had fell into the sin of fornication, and they were not lambasted to a life of perpetual shame. This is especially true of relations that occurred before someone had accepted Islam, and even more so when someone born of those relations accepting Islam.

While we as Muslims must act as witnesses to God’s truth in this world, we must also embody the mercy and compassion that God had written upon himself the day he created the heavens and the earth. This balance at personal, familial, and community levels is necessary if we desire to attain the level of success reached by previous generations of Muslims, instead of continuously taking credit for theirs while working towards the contrary.

General principles applicable to food, drink, and medicine

After returning from a summer trip in the states, I decided to read up and post on issues that have to do with food, drink, and generally anything else you can ingest.

The next few posts will seem a bit esoteric, but later when I get into issues (inshallah) the principles mentioned in the posts should fit right in.

 

So here it goes.

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General principles applicable to food, drink, and medicine

Principle #1: The base ruling of all substances is that they are permissible and pure

Its evidence: ((It is He who has created for you everything in the earth)) 2:29

 

Principle #2: The concept of transformation

Transformation (Arabic: استحالة) is defined as: “the change of some substance’s nature and description.” [Al-Misbah al-Munir]

Transformation is then the molecular change of a something from one substance to another, through addition or subtraction of its base components, or the effects of time and outer effects on its nature.

 

Evidence for this:

1- Consensus of the scholars that if wine were to change into vinegar that the latter would be permissible to consume

2- The Hadith “Any animal skin which is tanned becomes pure” [Tirmidhi, Nasa’i, Baihaqi]

3- The fact that the milk of any animal is transformed from its blood, yet it is still permissible to consume, although it is originally blood.

 

Ibn Taymiyah on fulfilling an obligation while involved in debatable acts

“All of creation is bound to certain obligations, such as supporting themselves and their relatives, paying their debts, etc. If they were to neglect to do these things, they would be clearly and undisputedly in the wrong. However, if they were to fulfill their obligations, albeit in a manner in which there is some ambiguity [as to its legality], the wrong they might have committed is not definite. How then can a Muslim, because of religious zeal, abstain from an indefinite wrong by committing one that is definite?”

 

Ibn Taymiyah, Majmu’ Al-Fatawa, Vol.30, Pp.192-193