E FECTOS DE UNA ONDA EXPANSIVA : A RGENTINA

Ibn Baṭṭa (d.387 AH), a prominent Ḥanbalī jurist and traditionist,16 wrote his refutation to the

ḥiyal in response to a specific ḥīla proffered by a Muftī which involved the marriage

dissolution procedure known as khulʿ. A man had sworn an oath that his wife would be divorced thrice if he did not kill an innocent Muslim with whom he had had a dispute. Regretting his oath and not wanting to carry out the killing or that his wife should be permanently divorced, he petitioned the Muftī to provide him with a way out. The Muftī suggested that the man should get his wife to ask for a khulʿ by which their marriage could be terminated. He reasoned that once the khulʿ was given and the marriage ended, the oath would be rendered inoperative. The man could then remarry his wife and be absolved from his oath.17

15

al-Bukhārī, Ṣaḥīḥ, vol 3, 1405 (ḥadīth no. 7039).

16 _{See his biography in Abū Yaʿlā, Ṭabaqāt al-Ḥanābila, vol. 2, 125-132.} 17 _{Ibn Baṭṭa, Ibṭāl al-Ḥiyal, 49-50.}

96 Although Ibn Baṭṭa is responding to this specific ḥīla, his extensive answer includes a rebuttal of the ḥiyal in general. He therefore begins by explaining the problems with the Muftī‘s solution and then draws a general conclusion from which he sets out to refute the ḥiyal as a whole. A large portion of his work is also taken up in explicating his perspective on the nature of the jurists‘ role and the traits and characteristics they should aspire to.18

3.2.1 Ibn Baṭṭa‘s Juridical Rebuttal

Ibn Baṭṭa summarily dismisses the solution given by the Muftī because it ignores the fact that merely by requesting the solution, the petitioner has broken his resolve to kill his opponent, meaning that the triple divorce had already been effected.19 He then goes on to deal with the answer put forward by the Muftī. His first assertion is that no real jurist or jurisconsult would give such a fatwā, as the job of the jurist is to teach and guide to that which is true,20 and not to teach ḥiyal which are a deception to God and his Prophet (pbuh).21 He substantiates this assertion with two key arguments: Firstly, God has prescribed khulʿ for a specific situation which is clearly mentioned in the Qurʾān (2:229), and its usage in this ḥīla contradicts that legal purpose.22 Ibn Baṭṭa quotes numerous traditions and ruling from the jurists to corroborate his point.23 In one tradition the Prophet (pbuh) says ‗what is wrong with people that they play with the limits of Allah and mock his signs [by saying]: I grant you khulʿ, I take you back, I divorce you‘.24

Ibn Baṭṭa is making a very important point here, namely that the laws of God have been set for a specific purpose and that they should only be used for that

18 _{Ibid, 50-92, 131-143. The total length of the epistle is 98 pages and thus his treatment of the jurists represents}

more than a half of the total work.

19 _{Ibid, 92-93.} 20

‗Taʿlīm al-ḥaq wa al-dalāla ʿalayh‘, see ibid, 93.

21 _{Ibid, 94.}

22 _{‗Qad waḍaʿ al-khulʿ fī ghayr mā ṣanaʿ Allāh lahū wa qaṣad‘. This is a point he makes repeatedly throughout}

his epistle which shows its importance to his argument. See ibid, 96, 105, 111, 116, 125.

23

Ibid, 96-105.

24 _{Ibid, 106-7. In the following tradition he quotes, the words of mockery are: I divorce you, I take you back, I}

97 purpose, and to use them contrarily or for one‘s own purpose is tantamount to playing with, or mocking, the divine law.

His second point is that a distinguishing characteristic of the ḥiyal is that in their outward forms they conform to the law, whereas internally, they do not. He compares this approach to the behaviour of the hypocrites, who outwardly profess themselves to be Muslims, whereas inwardly, they are not. The result of this technique is that, according to its outward manifestations, an action may be legally permitted, whereas religiously it is reprehensible. At this juncture he mentions the specific warning from the Prophet (pbuh) regarding the ḥiyal:

Do not commit that which the Jews committed, such that you make permissible the prohibitions of God

by the smallest of ḥiyal.25

Following this he goes on to discuss some of the Jewish ḥiyal which this ḥadīth maybe alluding to. The Qurʾān itself refers to the cause of one of these ḥiyal:

Ask them (O Muhammad) of the township that was by the sea, how they did break the Sabbath, how

their big fish came unto them visibly upon their Sabbath day and on a day when they did not keep

Sabbath came they not unto them. Thus did We try them for that they were evil-livers.26

The Jews were rebuked for setting out their fishing nets on the day before the Sabbath. The fish would be trapped as they appeared on the Sabbath and the Jews would then take them from the nets on the next day. By this argument the Jews intended to violate the Sabbath, not openly, but by outwardly conforming to the law while intending the opposite. The Jewish tendency to interpret their religious rules in this way is highlighted in a tradition where the

25

‗Lā tartakibū mā irtakabat al-yahūd fa-tastaḥillūn maḥārim Allāh bi adnā al-ḥiyal‘, see Ibn Baṭṭa, Ibṭāl al-

ḥiyal, 112. This Jewish use of numerous legal fictions has been discussed by many authors, and with specific

regard to the usury prohibition they have been fully documented in Hillel Gamoran, Jewish Law in Transition:

How Economic Forces Overcame the Prohibition Against Lending on Interest (New York: Hebrew Union

College Press: 2008). For Jewish legal fictions in general, see Ze‘ev W. Falk, Introduction to the Jewish Law of

the Second Commonwealth (Leiden, E. J. Brill, 1972), vol. 1, 22; Bertram B. Benas, ―The Legal Device in

Jewish Law,‖ Journal of Comparative Legislation and International Law 11, no. 1 (1929): 78; B. Felsenthal, ―The Law of Release, as Understood and Practised in the Apostolic Age,‖ The Old Testament Student 3, no. 5 (1884): 147; Solomon Goldman, ―The Legal Fiction in Jewish Law,‖ in Presentation Volume to William Barron

Stevenson, ed. C. J. Mullo Weir (Glasgow: Glasgow University Oriental Society, 1945), 63; Ephraim E. Urbach, The Halakhah: its Sources and Development (Tel-Aviv: Modan, 1996), 253.

98 Prophet (pbuh) says: May God curse the Jews they prohibit the fat of the sheep and [instead] they consume its price.27 Commenting on this incident Ibn Baṭṭa remarks that God only cursed them because they used a ḥīla to ‗consume‘ the fat.28 In these examples Ibn Baṭṭa is demonstrating that what is important is not mere outward conformation to the letter of the law, but rather to inwardly accept the substantive import of the law and that it, like the outward, must equally be upheld.

He demonstrates the importance of inward conformity using a tradition in which the Prophet (pbuh) prohibits a person, who has just concluded a sale contract, from immediately departing from the other party out of fear that the latter may rescind the contract. From this, he infers that this prohibition is premised upon the intention to use the departure as a ḥīla to prevent the other party from rescinding the contract. Had there been no such intention, the departure would be both normal and acceptable.29 This is an important step in the argument of the detractors of the ḥiyal, as the notion of intent, like in al-Bukhārī‘s work, is identified as an important factor in assessing the legitimacy of actions. Ibn Baṭṭa supports this inference by quoting Aḥmad‘s statement when asked about this ḥadīth, in which he replies: it is the invalidation (ibṭal) of ḥiyal‘.30

Ibn Baṭṭa‘s approach thus contains three principal arguments:

1. The legal rules must be used as per their prescription and divine mandate and the ḥiyal do the exact opposite.

27 _{Ibn Baṭṭa, Ibṭāl al-ḥiyal, 113. ‗Consuming its price‘ is explained in a similar narration which says: May God}

fight the Jews, whereas fat was prohibited to them, they melted it and sold it. See Ibn Taymiyya, Bayān al-Dalīl, 35.

28

Ibn Baṭṭa, Ibṭāl al-ḥiyal, 113-14.

29 _{Ibid, 116.} 30 _{Ibid, 117.}

99 2. The ḥiyal are a deception as they outwardly simulate licit actions whereas inwardly

they aim to legalise the proscribed.

3. The intentions of the parties are critical in determining the legality of actions.

3.2.2 Ibn Baṭṭa on the Jurists

Apart from his juridical arguments, another important aspect of Ibn Baṭṭa‘s epistle is his views regarding the jurists and the nature of the office they hold. At the outset of the epistle he outlines that the most significant characteristic of the jurist is his God-consciousness and his scrupulousness in this regard; the jurist is one who is imbued with the fear of God. Just how this translates into a juridical methodology is explicated in his concluding chapter. Here he quotes a number of jurists who advise that one should refrain as much as possible from giving verdicts or delving into complex and difficult issues and that whoever tries to answer every possible question is a madman.31

But more telling than this are his quotes which advise against pursuing exits (makhārij) for people. The Madīnan jurist Rabīʿa is thus advised: ‗If a man asks regarding an issue, do not exert yourself in giving him an exit but let your exertion be in extricating yourself.‘32 Ibn Baṭṭa even attempts to vindicate this position with reference to a tradition which says that ‗speech is the agent of tribulation‘. He infers from this, that the difficulties which befall an individual are due to carelessness in speech and if a person swears an oath mindlessly, then the consequences that he faces are his own doing. This, Ibn Baṭṭa claims, belies all those who employ ḥiyal to avoid breaking their oaths and those who seek exits from their oaths and thereby try to avoid the harm that their oaths may entail.33

31

Ibid, 131-40.

32 _{Ibid, 133-34.} 33 _{Ibid, 141-42.}

100