E L ESCRITOR EN GUERRA (II): EL ESCRIBIENTE Y LA FÁBRICA DE PROPAGANDA

Ibn Taymiyya sets out to conclusively demonstrate that intentions determine the legitimacy of contracts and that their impact is not restricted to mere moral reproval. It is generally known that the Ḥanafīs and Shāfiʿīs do not nullify contracts based upon unlawful intents, whereas the Mālikīs and Ḥanbalīs do.53

However, as Nabil Saleh judiciously notes, their difference is not regarding unlawful intentions when they are overtly expressed, as these would be unanimously rejected, but rather on the probability or suspicion of an unlawful intention.54 For the Ḥanafīs and the Shafiʿīs, contracts and transactions are always deemed to be lawful in the absence of an expressed unlawful intent. This however is directly opposed by the Mālikīs and Ḥanbalīs who nullify contracts if the parties harbour an intention to violate the law, whether that intention is made overt or not is immaterial to the legal ruling. Ibn Taymiyya defends this position and his presentation is hence focused on demonstrating that intent has a significant role to play in the validity of contracts.

Ibn Taymiyya demonstrates the importance of intentions firstly through the use of textual sources which stress its centrality both to the religious value of an action and also to its legal ruling. By religious value is meant the consequences of the action in the next life, whereas the legal ruling relates to its temporal evaluation. The ḥadīth quoted by al-Bukhārī is, in this context, very important as it stresses that all actions are evaluated by their intentions and is taken by the ḥiyal antagonists to apply in the religious sense and also in the legal sense. Ibn

53 _{For a detailed exposition see, Oussama Arabi, ―Intention and Method in Sanhuri‘s Fiqh: Cause as Ulterior}

Motive,‖ Islamic Law and Society 4, no. 2 (1997): 200-223; Muhammad Waḥīd al-Dīn Siwār, al-Taʿbīr ʿan al-

Irāda fī al-Fiqh al-Islāmī, (ʿAmmān: Maktaba Dār al-Thaqāfa, 1998); Paul R. Powers, Intent in Islamic Law: Motive and Meaning in Medieval Sunnī Fiqh (Leiden: Brill, 2006), 97-121. Powers, although relying heavily on

Arabi‘s work, questions whether his characterisation of the Ḥanafīs is correct. His conclusion however, is based upon his clearly errant reading of al-Kāsānī‘s discussion on the topic, where he reads al-Kasānī‘s statement

waqaʿat al-ḥāja as ‗waqaʿtu al-ḥāja‘ which he translates as ‗I insist on the specification [of the contract] by niyya‘. See Ibid, 109-10.

54 _{Nabil Saleh, ―Are the Validity and Construction of Legal Acts Affected by Cause (Sabab)? A Comparative}

108 Taymiyya quotes two ḥadīth which explicitly show the religious importance of having the correct intention at the time of entering into a contract.

1. ‗Whoever marries a woman for a dowry which he intends not to give to her, is a fornicator and whoever incurs a debt intending not to fulfil it, is a thief‘.

2. ‗Whoever takes the wealth of people intending [at the time] its repayment, God will pay it on his behalf, [whereas] whoever takes it intending to destroy it, God will destroy him.‘55

These aḥādīth clearly show the important role of one‘s intention and the religious value attached to them. Although the outward forms of contracts may satisfy the legal conditions for validity, it is clear from the ḥadīth, that those performed mala fide will ultimately be judged according to the intent behind them.

He then goes on to show how intent can govern the legal ruling of an action and determine the subsequent outcome. Three examples will suffice, although he provides a host of others:

1. A muḥrim (person in the state of iḥrām) is prohibited from hunting although he is permitted to consume the meat of the prey if it is hunted by a non-muḥrim. If the latter, however, makes the intention at the time of the hunt, that the meat is specifically for the former then, according to some jurists, it becomes prohibited for the muḥrim to consume.56

2. The rules of ribā al-nasāʾa prohibit fungible items of the same genus to be exchanged without immediate delivery. The same, however, is permitted when the intention behind it is to give a gratuitous loan. Both contracts involve one party acquiring

dirhams, for example, and then returning their equivalent after the conclusion of the

55 _{Ibid, 59-60. The editor notes that first ḥadīth is to be found in the Musnad al-Bazzār, with a weak chain, and}

the second in the collections of al-Bukhārī, Ibn Mājah and Aḥmad.

56 _{Ibid, 58-59. It should be noted that this is not the Ḥanafī position as Ibn Taymiyya, himself, notes. See al-}

109 contract. The difference between the rulings is based upon the intention of the parties. The first transaction is commercial and hence premised upon exchange and profit, whereas the second is philanthropic.57

3. Transactions of the coerced (mukrah) and the joker (hāzil) are disregarded, precisely due to their lack of intent.58

Ibn Taymiyya concludes that from these examples that intents do impact the legal ruling of actions and contracts and this, he says, uproots the very basis of the ḥiyal, because someone who uses a ḥīla, not only, does not intend the purpose of the contract which it is designed to serve, but over and above that, he intends its exact opposite. The result is that instead of realising the purpose of the contract, he does the opposite and seeks thereby to deny someone‘s legal right or to permit for himself what is not licit for him. The validator (muḥallil), hence, does not only, not intend the marriage he contracts, as the coerced or joker does, but rather he also intends to divorce his would be wife. Similarly the person who uses the ʿīna transaction does not intend by the sale to acquire ownership of the intermediary items, but rather to give, say a £100 pounds cash in order to receive £200 later on, which is nothing but ribā.

The response of the Sharīʿa to the ḥiyal is to invalidate the transaction if both parties are guilty of acting mala fide, and if it be unilateral then the transaction will stand but the real purpose will be countered. Hence the transaction of a person who sells part of his wealth to avoid the alms-tax, or divorces his wife to disinherit her, will be upheld although he will still be liable to pay the tax, and his divorced wife will retain her inheritance right.59 Ibn al- Qayyim, again concurs with his mentor:

57

Ibib, 60-1. This is also contrary to the Ḥanafī viewpoint and has been discussed earlier in the chapter on ribā.

58 _{Ibid, 61-74.} 59 _{Ibid, 75.}

110 Whoever ponders over the Sharīʿa and is endowed with a juridical noesis (fiqh al-nafs), will observe that it nullifies the goals of the ḥiyal proponents and counters them [by establishing] it‘s opposite. …

[For example,] the invalidation of a bequest, if the beneficiary kills his benefactor … [or] the

nullification of an affirmation of money [owed] by a terminally ill [person] to his inheritor, because he

uses it as a ḥīla to make a bequest for him.60

He also goes one step further and claims that not only is it the Sharīʿa which enacts the opposite ruling but also the divine destiny (qadr) of the offender will result in the opposite of his unlawful intent.61