Resultados de la puesta en práctica de la propuesta de actividades

The Ḥanafī School generally takes a similar position to the Shāfiʿī School in disregarding parties’ motives behind contracts.270 _{Its founder Abū Ḥanīfah validates}

the selling of grapes to a winemaker and hiring Muslims to carry wine, as well as the contract of nikāḥ al-taḥlīla and selling materials which can be used to make weapons at a time of disorder.271 In addition, books containing practises of valid ḥīlah are attributed to scholars within the Ḥanafī School, such as Muḥammad Ibn al-Ḥasan al- Shaybāny (d.189/805)272 _{and Abū Bakr al-Khaṣṣāf (d. 261/874).}273

However, the validation of some ḥīlah does not necessarily imply its permissibility, according to the Ḥanafī School. Many jurists within the school, including Abū Ḥanīfah, al-Shaybāny, and al-Khaṣṣāf, have made it clear that ḥīlah

becomes prohibited when it is misused to harm or deny other people’s rights.274 _Such

an understanding also seems clear to late Ḥanafī scholars, as attested in the book of

al-Fatāwā al-Hindiyah: “The view of our scholars is to prohibit any ḥīlah used by a person to void others’ rights or to make people suspect it as well as disguising what it is null and void”.275

Like Abū Ḥanīfah, al-Shaybāny, one of most authoritative jurists in the Ḥanafī School, prohibits the ʿīnah transaction and sees it as being invented by the consumers of usury. He describes the burden of evil of engaging in such transaction as being as

270 _{al-Sanhūrī, Maṣādir al-Ḥaq fī al-Fiqh al-Islāamī, 4, p56; al-Duranī, al-Naẓariyāt al-Fiqhīh, p233.} 271 _{See: Ibn ʿābidīn, Raddu al-Muḥtār ʿAlā al-Durri al-Mukhtār sharḥ Tanwīr al-Abṣār, 4, p268; al-}

Zuḥaylī, al-Fiqh al-Islāamī wa Adilatuh 4, p3033.

272 _{Muḥammad Ibn al-Ḥasan al-Shaybāny, al-Makhārij fī al-Ḥiyal (Maktabah al-Thanqāfah al-Dīnīh,}

1999).. Some researchers dispute the authenticity this book’s attribution to al-Shaybāny; see: Ibrāhīm,

al-Ḥiyal al-Fiqhiyyah fī al-Muʿāmalāt al-Māliyyah, p27; Rosman, "al-Ḥiyal wa al-Makhārij fī al- Muʿāmalāt al-Maṣrifiyyah al-Islāmiyyah," p6; al-Qurashī, Ishkāliyyh al-Ḥiyal fī al-Baḥth al-Fiqhī, p158; Aḥmad Muḥammad al-Naqīb, al-Madhhab al-Ḥanafī, vol. 1 (Maktabah al-Rushd, 2001), p413.

273 _{See: Schacht, An Introduction to Islamic Law, p81.}

274 _{See: al-ʿAsqalānī, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhārī, 12, p331; al-Khaṣṣāf, Kitāb al-Ḥiyal, 5; al-}

Shāṭibī, al-Muwāfaqāt, 1. Vol 5, p188.

275 _{Niẓām al-Dīn al-Balkhī and Others, al-Fatāwā al-Hindiyah fī Madhhab al-Imām al-Aʿẓam abī} Ḥanīfah al-Nuʿmān, vol. 6 (Dār al-Fikir, 1991), p390.

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heavy as mountains.276 Similarly, Abū Yūsuf )d.182/798), another authoritative scholar who was a student of Abū Ḥanīfah and the Chief Justice in his time, wrote about the prohibition against using ḥīlah to avoid the payment of obligatory tax in his renowned book al-Kharāj (Treatise on Taxation), which he authored at the caliph’s request. The text reads:

It is not permissible for a person who believes in Allah and the day of judgment to not pay the ṣadaqah )obligatory charity tax), or to split his property or divide it by a formalistic sale or any kind of legal tricks to avoid the payment of ṣadaqah.277

Furthermore, the position of the Ḥanafī School appears clear to other schools of thought. For instance, Ibn Ḥajar of the Shāfiʿī School states,

The advocating of ḥīlah has been widely attributed to Ḥanafī School because Abū Yūsuf has authored a book on the subject. However, their jurists are known to limit its implementation to what is right".278

In fact, al-Qurashī argues that there is a very strong voice—at least theoretically— within the Ḥanafī School supporting substance over form.279 _{However, although such}

a position suits their heavy reliance on qyās (analogy) as a source of Shari‘ah, he later admits that it might not be the case in practise.280 Similarly, Hassan argues that the Ḥanafī School considers intention where indications of intent can be drawn from the circumstances and norms surrounding the action.281 He cites the example of pronouncing a divorce at the time of death-sickness (maraḍ al-mawt); while the Shāfiʿī School completely validates such a divorce and excludes the wife from inheritance, the Ḥanafī allow the wife to inherit her share according to Shari‘ah inheritance law as long as she is still in the ʿiddah (a legal waiting period before the

276 _{Ibn ʿābidīn, Raddu al-Muḥtār ʿAlā al-Durri al-Mukhtār sharḥ Tanwīr al-Abṣār, 4., vol 5 p273.} 277 _{Abū Yūsuf, Kitāb al-Kharāj, p80.}

278 _{al-ʿAsqalānī, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhārī, 12, p326. See also: al-Shāṭibī vlo5, p188.} 279 _{al-Qurashī, Ishkāliyyh al-Ḥiyal fī al-Baḥth al-Fiqhī, p169.}

280 _Ibid.

281 _{Hussain Hamed Hassan, Naẓarīh al-Maṣlaḥah f al-Fiqh al-Islāmī (Maktabah al-Mutanabī, 1981),}

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women can remarry). The rationale for such a ruling is that the husband, by divorcing his wife after the illness that is likely to cause his death, is seen as trying to circumvent the Shari‘ah inheritance law. However, unlike the Mālikī and Ḥanbalī schools of thought, Ḥanafī does not extend such a ruling after the passing of ʿiddah

time. Thus, this case is an exception to the school’s general theory on disregarding intention from a validity perspective, and it is not sufficient to support the argument of Hassan.282

Nonetheless, it is important not to accept the outright characterisation of the Ḥanafī School as pro-ḥīlah. The authenticity of such a claim must be cross-checked with the view stated in the authoritative books of the school, rather than in history and biography books.283 In addition, the isolated opinions or practises of a few individual scholars should not be attributed to the whole school.284 Ibn Taymiyah and Ibn al- Qayyim point out that numerous ḥīyal invented by jurists from different schools of thought contradict the principles of the founders of these schools.285 Ibn Baṭah al- ʿUkbarī (d.387/997) narrates a story in which he asks a respected Shāfiʿī jurist about a

ḥīlah that was attributed to al-Shāfiʿī. The scholar is surprised about this claim and cites Abū ʿAbdi Allāh al-Zubayrī (d.306/929), an authoritative scholar within the Shāfiʿī madhhab, who firmly denounces the existence of such opinion of al-Shāfiʿī.286

Even within the Mālikī and Ḥanbalī Schools, where the positions of Mālik Ibn Anas and Aḥmad Ibn Ḥanbal, the school founders, are very strict against ḥīlah, such a practise has been recorded. According to Ibn Taymiyah, some of the Ḥanbalī scholars

282 _{For the position of different schools on pronouncing divorce at the time of death-sickness, see:}

Wzārah al-Awqāf al-Kuwaytiyah, al-Mawsūʿah al-Fiqhiyyah, vol. 32 (Wzārah al-Awqāf al-

Kuwaytiyah, 1995), p75; Hassan, Naẓarīh al-Maṣlaḥah f al-Fiqh al-Islāmī, p295.

283 _{al-Qurashī, Ishkāliyyh al-Ḥiyal fī al-Baḥth al-Fiqhī, p161.}

284 _{Ibid., p88; Ibn Taymiyah, Bayān al-Dalīl ʿalā Ibṭāl al-Taḥlīl, p130.}

285_{Bayān al-Dalīl ʿalā Ibṭāl al-Taḥlīl, p134; Ibn al-Qayyim, Iʿlām al-Mawqiʿayn ʿan Rab al-ʿĀlamīn,}

3, p281.

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went as far as using ḥīlah to legalise specific cases that were explicitly prohibited by Ibn Ḥanbal himself.287

Besides, many ḥīyal validated by late Ḥanafī and Shāfiʿī scholars were based on individual cases that do not necessarily correspond to the original ruling of the schools’ founders.288 _{This process is called takhrīj, where in the absence of an} opinion from the founding scholars on the case in question, a jurist would derive an opinion from a ruling of the school’s founder on a different case, or the jurist would use his legal methodology to derive an opinion from the original sources of Shari‘ah.289 However, in some cases, according to Ibn al-Qayyim,290 the follower jurists extended the ruling beyond what the school’s founder had originally authorised and attributed it to him. He argues that some of these ḥīyal cannot possibly be allowed by the founding scholars, taking into account their religious piety and the general principles of the school.291 In summary, the position of the Ḥanafī School is generally similar to the Shāfiʿī School view: although it validates some ḥīyal from the perspective of al-ḥukm al-waḍʿī, the misuse of ḥīlah to achieve illegal ends is prohibited from an al-ḥukm al-taklīfī perspective.