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Ḥiyal

By:
Satoe Horii
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Ḥiyal

In Islamic jurisprudence, ḥiyal (sg. ḥīla) signify “legal devices,” that is, lawful but unusual means to a jurisprudential end that otherwise cannot be achieved without violating legal methodology. They were often provided through fatāwā to those who sought them. A common scholarly view best represented by Schacht, who was the first to make a full-scale study of the subject, understands ḥiyal primarily in terms of evasion of the law, such as a usurious loan in the disguise of double-sale, on the assumption that the religious law of Islam could not cope with social realities. However, as a legal phenomenon, ḥiyal are nothing peculiar to Islamic law. For Muslim jurists ḥiyal derive from juristic endeavors to find a solution to a given case in past doctrine, though they had different views of the distinction between lawful and unlawful devices.

Among the four Sunnī schools of law, Ḥanafīs most extensively legitimate ḥiyal in the name of makhārij or “ways out.” One may resort to them for the purpose of eliminating disadvantages, as a rule, without prejudice to other rights, but exceptions are allowed according to the case. Thus a purchaser of an immovable is often allowed to prevent a co-owner or neighbor of the seller from exercising the right of pre-emption (shufʿah), a right regarded as harmful in many respects. The concept of makhārij, which might originate in Iraqi legal tradition prior to Abū Ḥanīfah (d. 767), was elaborated by his two principal disciples Abū Yūsuf (d. 798) and Shaybānī (d. 805). Their works on the subject, followed by Khaṣṣāf (d. 874) and others, formed the basis of a special branch of jurisprudence that studies the cases of makhārij ascribed to Ḥanafī legal authorities.

In their stereotyped arguments against ḥiyal, non-Ḥanafīs appear more or less influenced by traditionalists (aṣḥāb al-ḥadīth) who, during the ninth century, vehemently attacked ḥiyal in their campaign against rationalists (aṣḥāb al-raʾy): Traditionalists associated ḥiyal with a formalism peculiar to their antagonists, whom they accused of judging deeds not by intention, but as they appear. In fact, non-Ḥanafīs do mention various ḥiyal, though not always by name, in their standard works of jurisprudence. Mālikīs, for example, criticized some Ḥanafī ḥiyal on the basis of their principle of sadd al-dharāʾiʿ, that is, “blocking the means” to an evil end, according to which any juristic act, lawful in its appearance, is declared null and void, when illegal purposes or evil consequences are presumed. On the other hand, a number of devices are ascribed to Anas ibn Mālik (d. 795), as conveyed by Saḥnūn (d. 855) in his Mudawwana. In their theses against ḥiyal, the Ḥanbalite Ibn Taymīyah (d. 1328) and his disciple Ibn Qayyim al-Jawzīyah (d. 1350) argue that the best way is to construct a body of law by virtue of which one can do without devices. Conversely, they provide numerous ways to circumvent Ḥanbalī doctrine in case they find it inconsistent with the legislative purposes.

Bibliography:

  • Horii, Satoe. “Reconsideration of of legal devices in Islamic jurisprudence: The Ḥanafīs and their ‘exits’ (makhārij).” Islamic Law and Society 9, no. 9 (2002): 312–357.
  • Schacht, Joseph. “Die arabische ḥijal-Literatur. Ein Beitrag zur Erforschung der islāmischen Rechtspraxis.” Der Islam 15, no. 2 (1926): 211–232.
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