Pasivos

The Mālikīs and the Shāfiʿīs identify the pertinent characteristics of the first group to be their universal recognition as currency (thamaniyya), and in the second group that all the commodities are foodstuffs (ṭuʿmiyya).36 The proof-text for this will be shown followed by an examination of how each of these Schools subsequently develops its own application of the rules.

1.2.3.1.1 The Dalīl for the Mālikī-Shāfiʿi Ratio

al-Shāfiʿī, in his magnum opus, the kitāb al-Umm, narrates a number of aḥādīth relating to the

ribā prohibition and then sets out to explain the basis of the two groups. He begins with gold

and silver and explains that they are different to all other things because they constitute the price of other things. By this he means that these metals are unique in their function as currencies for purchasing other goods. This distinct inherent utility, he argues, precludes that any other items should be regarded as analogous to them.‘37

The Mālikīs employ similar reasoning as can be seen in the work of the Andalusian Ibn Rushd. He similarly argues that gold and silver are not analogous to other commodities and supports his argument by invoking juridical unanimity on the point that gold and silver may be exchanged for all

35 _{These are known as ḥadīth mawqūf and ḥadīth maqṭūʿ respectively.} 36

Wahba al-Zuḥaylī, al-Fiqh al-Islāmī wa Adillatuhū, 4th ed. (Damascus: Dār al-Fikr, 1997), vol. 5, 3716-3719.

37 _{Abū ʿAbdulllah Muḥammad ibn Idrīs al-Shāfiʿī, Kitāb al-Umm (Beirut: Dār al-Kutub al-ʿIlmiyya, 1993), vol.}

30 fungibles sold by weight or measure with a delay in delivery.38 The implication being that even the jurists who regard the ratio as weight and measure, make an exception to the rules for gold and silver in recognition of their unique function as ubiquitously acceptable currencies.

The second ratio of the Mālikīs and Shāfiʿīs is foodstuffs and finds a textual basis in the following prophetic tradition:

Maʿmar ibn ʿAbdullah (ra) related that … I used to hear the Messenger of Allah (pbuh) say ‗[Sell] food for food [only if it is] like for like.39

This ḥadīth shows that the underlying factor in group two of the six commodities is the fact that they are foodstuffs. The ruling given here demands equivalence in exchanges of all foodstuffs of one genus, and is not specifically restricted to the six items mentioned in the other tradition. This implies that the previous tradition is merely a specific application of a more general rule enunciated here.

The ruling in this ḥadīth is linked to a derivative word (ism mushtaqq), which is ṭaʿām, foodstuff and the principle according to the scholars of uṣul al-fiqh is that ‗when a ruling is linked to a derivative word it indicates that the meaning, from which the word is derived, is the ratio of the ruling‘.40

For example, in the Qurʾānic verse which deals with the punishment for stealing, the verse reads: al-sāriq wa al-sāriqa faqṭaʿū aydiyahumā – The male and female thief, you must cut [off] their hands (5:38). The scholars of uṣūl argue that the ratio for cutting is theft, sariqa, because firstly, the verse mentions the punishment linked to a derivative word, namely al-sāriq, and secondly because the meaning which is in this word, is not the thief but

38 _{Ibn Rushd, al-Muqaddimāt al-Mumahhidāt, vol. 1, 347, 359.} 39

Muslim, Ṣaḥīḥ, vol. 2, 678 (ḥadīth no. 4164).

40 _{‗Anna al-ḥukm idhā ʿallaqa bi ism mushtaqq dalla ʿalā anna al-maʿnā alladhī ushtuqqa minhū al-ism huwa} ‘illa al-ḥukm. See al-Zuḥaylī, al-Fiqh al-Islāmī, vol. 5, 3719; al-Māwardī, al-Ḥāwī al-Kabīr, vol. 5, 86.

31 rather the action of theft itself.41 The ratio is hence derived from a ruling which is expressly connected, in a proof-text, to an ism mushtaqq. Applying this argument to the ḥadīth mentioned above, the demand for equivalence in linked to the derivative word ṭaʿām, which means foodstuff, and the ḥadīth therefore indicates this to be the characteristic which is causal to the ribā rules.

The Mālikīs and Shāfiʿīs agree on this much, but in identifying the scope of the ratio of foodstuff, their doctrines substantially diverge. For the Shāfiʿīs, foodstuff includes anything which is capable of being a source of nourishment as opposed to being limited to food proper, and so may include medicines and seasonings.42 If one looks at the uṣūlī argument given above, then strictly speaking it favours the interpretation of the Shāfiʿīs because the principle is to derive the ratio from the meaning in the derivative word and not from the derivative word itself. So instead of making food the ratio, it is more accurate to allocate it to the linguistic root meaning of ṭaʿām which is ṭuʿm. This is the descriptive element of the word food, as opposed to food itself and implies a wider application.

The Mālikīs, on the other hand, only adopt this broad meaning (with the exception of medicines) with regard to ribā al-nasāʾa. When it comes to ribā al-faḍl, they restrict the meaning of foodstuff with two conditions; namely that it should be a staple food and also that it should be storable.43 They infer this from the ḥadīth of the six commodities, where the four foodstuffs mentioned are wheat, barley, salt and dates. All of these items are characterised by the fact that they are staple and storable. The Mālikīs further argue that these items are functionally representative; in that, wheat and barley fulfil the basic dietary requirements and

41 _{al-Zuḥaylī, al-Fiqh al-Islāmī, vol. 5, 3719; al-Māwardī, al-Ḥāwī al-Kabīr, vol. 5, 86.} 42

al-Shāfiʿī, Kitāb al-Umm, vol. 3, 25-6.

43 _{Ibn Rushd, Bidāyat al-Mujtahid, trans. Imran Ahsan Khan Nyazee (Reading: Garnet Publishing, 1996), vol. 2,}

32 thus represent foodstuffs such as rice and corn; dates are both sweet and storable and represent foodstuffs such as sugar, honey and raisons, and salt, which is a necessary ingredient in the preparation of food, indicates other seasonings, like pepper and herbs.44

1.2.3.1.2 The Istidlāl for the Mālikī-Shāfiʿi Ratio

The istidlāl for the two ratios of food and money is, as expected, similar in both Schools. They argue that the Sharīʿa has augmented the conditions of normal contract permissibility in these six specific commodities with two extra provisions requiring equivalence and immediate delivery. Now, it is already known that whenever extra stipulations are mandated, the reason is invariably due to a meaning in the exchange items which implies a heightened risk, ziyādat

al-khaṭr. This can be noted, for example, in the marriage contract, where over and above the

normal conditions of offer and acceptance, the Sharīʿa demands that a woman‘s guardian conduct her marriage contract on her behalf and also that the marriage be attested by two upright witnesses. These two extra provisions act as safeguards in a contract which is of palpably more significance than an ordinary commercial contract.

Following this reasoning leads them to search for a cause in these contracts which makes them of such critical importance that extra conditions are stipulated in their trade. They subsequently observe that the ribā rulings pertain to currency and foodstuffs. The preservation of human life is premised upon the availability of staple foods and the role of money, as a medium of exchange, is central to the economic activity of a society.45 Both of these categories are of great importance to the material well being of each and every human being, such that there must be some form of protection in their trade. The two additional stipulations, therefore, act to prevent the spread of possible injustices in the economic supply of these

44

See Abū Muḥammad ʿAbd al-Wahhāb ʿAlī ibn Naṣr, al-Maʿūna (Beirut: Dār al-Kutub al-ʿIlmiyya, 2004), vol. 2, 5-6; Abū Zayd, Fiqh al-Ribā, 157.

33 objects. By extensions, all other commodities which are similar in attribute, either as foodstuffs or currencies and are not mentioned in the ḥādīth literature explicitly, are also governed by the rules of ribā as they too are regarded as vitally important.

Additionally, it can be observed that because the extra stipulations are due to the ziyādat al-

khaṭr of the exchange commodities, genus plays only a secondary role and is not regarded as a

distinct ratio, but is rather designated as a necessary condition (sharṭ).46 Genus is hence only operative as a subsequent condition of ribā al-faḍl if one of the two ratios (i.e. foodstuffs or currency) is already present. If, for example, someone sells two food items, like barley and salt, or two monetary items like gold and silver, then the presence of the ratio in both cases means that delay is not permitted, although quantitative disparity is allowed due to the items belonging to different genera. If wheat for wheat is sold, or silver for silver, then we can see that the ratio is again present in both cases, and hence delay is proscribed. Additionally, because the items are of the same genus, there needs to be quantitative equivalence. This means that exchanging items belonging to the same genus will not be subject to the rules of

ribā unless they are considered to be foodstuffs or currency. So the exchange of iron for iron

or wool for wool or camels for camels can be done with quantitative disparity and with deferred delivery. This is different to the Ḥanafīs, for whom genus itself is one of the ratios.