‘Aqd and Islamic din

If any voluntary act by which the agent binds himself can be called ‘aqd (so that the meaning of ‘aqd, pl. ‘uqud, can be generally translated as ‘binding act,’ from the Arabic root ‘-Q-D, ‘to tie’), in fiqh literature, the term is often used in the narrower sense of a bilateral/synallagmatic relation (such as sale, lease...) within the realm of mu‘awadat (civil/commercial transactions).⁵ This chapter will concentrate on this narrower meaning.

Before visiting the city of the ‘aqd, using the multiple itineraries of the madhahib, a preliminary remark by Chafik Chehata is worth mentioning. ‘The contractual phenomenon is a universal one. It is found at all latitudes and throughout history. The core question is: how has the law translated and inte­grated this phenomenon within its framework? Moreover: according to which rationales has the law, which presupposes a philosophy, admitted the contract as one of its “values”?’ (Chehata, 1968a, p. 129; my translation).

While the contract constitutes a universal phenomenon - a ‘fact’ for any human society - the core issue in comparative studies is to understand how each legal system has translated this fact, giving it ‘legal value;’ a meaning, through which the contract becomes itself vehicle of the nomos of that society. For instance, in common law, the ‘value’ of the contract is that of a promise or a set of promises which ‘the law will enforce if consideration is provided’ (as in the classic definition by Pollock, 1911, p. 1). ‘Consideration’ (i.e., something ‘of (economic) value:’ a price, a benefit, a property to exchange) is needed to render the promises binding, so that the rationale of the contract in common law is that of a bargain, performed or to be performed; in brief, an idea of contract-bargain. In contrast, in the civil law tradition, the contract is ‘an agree­ment thanks to which one or more parties bind themselves towards one or more others, to give, to do, or not to do something’ (Art.

If the tower of Orthanc may be split in two, as the contract is different in common and civil law,⁸ the Babel of the ‘aqd, with its Barad-dur tower, cannot be understood unless located within the space of Islamic din, which provides its conceptual unity within the revelation of Islam. In fact, if the believer acts by way of word (see Chapter 2) by performing the divine rule (hukm) in con­nection to parties’ rights (huquq), the ‘value’ of the ‘aqd is necessarily inserted within the space of a created agency whose effects are already established by Law (hukm al-‘aqd). Accordingly, within Islamic din, the ‘aqd becomes a dis­tinctive means of performance of God’s revelation, where its religious dimen­sion (the contract as an act of devotion) overlaps with the secular one (the contract as a means of exchange of properties); for the reformulation of the categories of ‘religious’ and ‘secular’ according to the notion of Islamic bios, see section 2.3 of this book.

3.3.1. The rule (hukm al- ‘aqd), its subject, and its object: from legal capacity (ahliyya) and personality (dhimma) to the duty (wujub) of the mukallaf

Assuming God as the only Ruler, the value of the ‘aqd moves from a legal philosophy that translates the ‘fact’ of the contract into Muslim life, bios, in the religion of Islam (section 2.3). In this frame, the notion of hukm al-‘aqd (that is to say, the ‘effect(s) of the contract’ established by Law and linked to corresponding rights, huquq al-‘aqd: see section 2.4.4) is discussed by Muslim classical scholars in relation to how the believer becomes responsible not only towards the counterparty but also towards God by performing the ‘aqd.

Hence, from the concept of hukm, Muslim jurisprudence derives the notions of ‘[ruled] subject’ (mahkum lahu) and ‘matter’ (mahkum bihi) of the contractual rule (hukm al-‘aqd): respectively, the contractual party that is ‘subject to the rule’ and the contractual ‘matter which is ruled.’ The believer is ‘subject to the rule’ when she/he enjoys legal subjectivity or capacity (ahliyya) (Zahraa, 1995). This comprises both the faculty of acquiring rights and duties (ahliyyat al-wujub, ‘capacity of being obliged,’ but also enjoying rights, as specified by classical scholars through the expression al-wujub lahu wa-‘alayh) and the faculty of exercising/accomplishing them (ahliyyat al-ada', ‘capacity of execution,’ ‘capacity to contract,’ to dispose and validly fulfilling what the subject is obliged to do). Both may be variously limited according to perma­nent or temporary restrictions.⁹ Legal capacity begins with birth and reaches its highest degree for the free Muslim who is of sound mind (‘dqil) and of age (bdligh), and therefore, fully responsible and under the taklif, ‘charge,’ of obeying God; ‘the mukallaf has the capacity to contract and to dispose (tasarruf), [and] he is bound to fulfil the religious duties,...

As it is related to the theological foundations of fiqh, the topic of ahliyya finds its natural collocation in the treatises of usul al-fiqh. In the Hanafi school, al-Bazdawi (d. 482/1089) explains that ‘legal capacity... lies on the existence of the “personality” (dhimma) given to man through his birth: this personal­ity is “apt to the duty” (sdlihatun li-l-wujub), according to... all the jurists, thanks to the (original) pact between God and the man’ (quoted in Brunsch- vig, 1976b, p. 42) (see Q. 7:171 and 17:14). In addition, ‘the necessary and sufficient condition... to be apt to the duty is to be apt... to the nature of the duty: man kdna ahlan li-hukmi l-wujubi bi-wajhin, kdna huwa ahlan li-l- wujubi, wa-man ld fa-ld' (ibidem). The notion of hukm al-wujub represents the key-element of al-Bazdawi’s approach as one of the three constitutive ele­ments of legal/religious duty (wujub):

1. the mahall, the ‘basis,’ ‘plate,’ ‘location’ of the duty, in a theology where God is the creator of human acts, of which man is merely the receiving subject (mahall) as performer of God’s will. The general substratum for all the duties is the legal ‘personality,’ the dhimma of the person;

2. the sabab (pl. asbdb), the empirical circumstance (effect of the divine cause, ‘illa: see section 2.4.4) for the occurrence of the duty. The pair sabab/‘illa depicts the divine will which sustains all creation: the sabab is, according to al-Bazdawi, ‘what defines the route that leads to the thing’ (‘ibdratun ‘ammd huwa tariqun ila s-say') (Brunschvig, 1976b, p. 43);

3. in addition to the mahall and sabab, duty doesn’t exist if there is no ‘apt­ness’ to its very nature (hukm al-wujub). Here, the term hukm, previously translated as ‘judgement,’ ‘rule,’ ‘decree,’ ‘effect of the rule,’ also indicates the ‘nature’ of the duty itself, whose essential character is established by God in His judgement (again, hukm).

3.3.2. Religious qualifications (al-ahkam al-khamsa) and the legal validity of the sar‘i act, its constitutive (arkan) and conditional (surut) elements

The cause of the action (sabab) brings about the rise of a ‘legal,’ or rather, ‘guided’ (sar‘i) duty of performance, both for physical (fil al-jawdrih) and mental actions (fi‘l al-qalb).

The intersection between law and religion in Muslim jurisprudence (accord­ing to the formula of Islamic bios) clearly emerges in the double qualification that is applied to human actions; whereas ‘the five qualifications’ (al-ahkam al- khamsa) are concerned with the ethical status of the action, what ‘corresponds to the Law’ (masru") in terms of legal validity is assessed according to a ‘secu­lar’ (‘temporal’, ‘worldly’) stance where normativity takes primacy. The two systems of qualification are concurrent and do not override one another; as noted by Schacht, this is not contradictory, since ‘the two predicates refer... to separate aspects of the [same] situation’ (1964, p. 122) - what Western scholars would describe, respectively, as ‘internal’ and ‘external’ forum. As pre­viously noted in section 2.3, they represent the two sides of the same coin in a space where ‘religious’ and ‘secular’ are not separated.

Dealing with the concept of hukm, the normative ethics of the ‘quintu­ple qualification’ (al-ahkam al-khamsa) has already been mentioned in sec­tion 2.4.4, in relation to the following taxonomy: (1) obligatory (wajib, fard); (2) recommended (sunna, mandub, mustahabb); (3) neutral, indiffer­ent (mubah); (4) reprehensible, disapproved (makruh); (5) and forbidden (haram, as opposed to halal, permitted). If a valid act from a legal perspective (forum externum) usually enjoys an ethical connotation (forum internum), the concurrent application of the two scales of qualifications to the same set of facts can occasionally lead to discordant results, with the action being legally valid (sahih, see later), but forbidden (haram). ‘For instance, a sale concluded at the time of the call to the Friday prayer is makruh...; it is legally effective but its conclusion at that particular time is forbidden’ (Schacht, 1964, p.

Focusing on the dimension of legal validity, any sar‘i act produces legal effects when it enjoys the contemporary presence of its constitutive/essential (rukn, pl. arkan) and conditional elements (sart, pl. surut).

On the one hand, the arkan refer to the existence, the ‘root’ (asl), of the action. Together with the specific arkan of each sar‘i act, essential elements of any action (Milliot, 1953, p. 203) are 1) the divine injunction (taklif) towards the mukallaf; 2) the legal capacity (ahliyya) of the ruled subject; 3) the ‘place’/‘location’ (mahall) of the juristic relation. For a ‘disposition by fact’ (al-tasarrufat al-fi‘liyya) (e.g. the cultivation of a piece of land; the appropriation of something), the ‘place’ is the relation cause-effect from which the legal effects derive; for a juristic act stricto sensu, ‘disposition by words’ (al-tasarrufat al-qawliyya), the mahall becomes the subject matter (al-ma‘qudalayh) on which the mutual consent (taradi) is expressed (Rayner, 1991, p. 131).

On the other hand, the surut affect the validity of the action, its compliance with the extrinsic circumstances (wasf) required by San‘ah, and may refer, for instance, to the capacity of the subject (e.g. the honour of the witness); the subject matter (e.g. the equality of the counter-values: prohibition of riba):, personal consent (rida); and so on.

Providing that the arkan and/or the surut are fulfilled or not, a sar‘i act can be

1. sahih, correct, sound, ‘valid,’ if both its arkan and its surut fulfil the Law. As noted previously, a sahih act may be makruh if ‘its asl and wasf correspond with the law, but something forbidden is connected with it’ (Schacht, 1964,

ð. 121). Moreover, a sahih act can enjoy different grades of effectiveness:

a. fully binding (nafidh, ‘operative,’ lazim, ‘binding,’ or wajib, ‘obligatory,’ ‘due’), if its enforceability doesn’t depend on confirmation, and cannot be unilaterally cancelled;

b. ghayr lazim, ‘not binding’ or ‘suspended,’ when it can be unilaterally cancelled, even if valid ab initio (as for the contract affected by option, khiyar, according to the Hanafis: on the topic of khiyar see section 3.4.4 of this chapter);

ñ. Hanafis and Malikis recognise a third category of valid acts, the acts that are mawquf, whose validity depends on the ratification by a third person (e.g., the guardian of a minor); the act is consequently ‘suspended’ and its effects postponed, but, as opposed to the ghayr lazim act, without the external ratification it will be considered inexistent ab initio (Linant de Bellefonds, 1965, pp. 87-101);

2. fasid, defective, voidable, ‘broken,’ if its arkan, but not the surut, are ful­filled (al-fasad, defectiveness, invalidity but not inexistence) (Linant de Bellefonds, 1977);

3. batil, null, void, inexistent, but also ‘false,’ if it lacks any rukn (al-butlan, inexistence).

The distinction between fasid and batil is theorised only by the Hanafis and not recognised by the other schools (Malikis, Safi‘is, Hanbalis).

3.3.3. At the borders of the city: the act of disposal (tasarruf) in relation to contractual rights (huquq al- ‘aqd)

As clarified in the previous section, in commercial relations which are con­cluded through a disposition by words (al-tasarrufat al-qawliyya), the ‘place’ (mahall) of the contract consists in the subject matter (al-ma‘qud alayh) on which the mutual consent (taradi) of the parties is expressed.

The distinctive value of the ‘aqd in Islamic din can be further disclosed here in relation to the new setting of huquq (‘rights’) to which the contract gives rise. As we have seen in Chapter 2, the concept of haqq (stemming from the Arabic root H-Q-Q) involves the ideas of ‘reality,’ ‘truth,’ ‘justice,’ where it is God’s piety that guarantees the just allocation of rights for the contracting parties. In this conception of justice, the contractual rights of an individual are never in competition with those of others; since they both represent a mani­festation of God’s will, they are not separate portions of human justice but ‘shares’ of the unique, divine, justice (Wl). Hence, the ‘right’ in Islam does not belong to a single person but defines (both) the right and the obligation, in the unity of the two elements (Smirnov, 1996, p. 345).

Alluding to the archetype of the scale, one may say that Western think­ing is concerned with the pans of the scales and their contents, while for classical Islamic thought the stress lies on the central balancing pivot.... In the second case it is the fact of balancing the opposites that is impor­tant, this balance being reached by means of the centring and mediating pivot; the theoretical task is to find out how the two might be linked to form a balanced unity and what the conditions are for such a linkage.

(ibidem, pp. 346-347)

This emphasis on linkage and reciprocity regarding the haqq is confirmed by Rosen:

this richly nuanced concept is commonly translated as “right” or “duty”, but its implications are far more diverse and subtle than those transla­tions alone convey. Basically, haqq is the distribution of rights and duties, the interconnected set of obligations and associations by which man and God, and man and man, are linked to one another. Indeed, it is precisely the distribution of obligations which constitutes the fundamental reality of human existence, which is why haqq also means ‘reality’ and ‘truth.’ (Rosen, 2000, pp. 156-157)

The distinctively ‘Islamic value’ of the ‘aqd as an act of disposal (tasarruf), thus, is inherently grounded in the nature of contractual rights (huquq al- ‘aqd) as manifestation of God’s reality, justice, and truth in the unity of ‘man and God, and man and man,’ where the action of the believer represents the performance of God’s will. It is within this specific philosophy of Muslim juris­prudence that the following pages will try to translate the meaning of the ‘aqd to the Western explorer, both as part of the divine creation and as a human enterprise.

With this aim, while still at the borders of the city, we can add some details to the general definition of the ‘aqd that we have already introduced. In Mus­lim jurisprudence, as we have seen, the Arabic word for contract, ‘aqd (pl. ‘uqud), derives from the root ‘-Q-D (whose corresponding verb ‘aqada means ‘to tie’ or ‘to bind’) and describes not only bilateral contracts but is ‘loosely employed to describe all manifestations of the will which tie their author to the obligations arising therefrom’ (Rayner, 1991, pp. 87-88).

The most common use of the word however is to denote synallagmatic transactions... which are concluded by an offer (jab) and an acceptance (qabul). The term ‘aqd is also used by the jurists to denote dispositions of property by will (mortis causa) which are concluded by the offer of one party only, such as gift (hiba), guarantee (daman), waqf bequests, the remission of debts and the... liberation of slaves. Mere juristic acts such as marriage (nikdh) and divorce (talaq)... also fall under the head­ing of ‘uqud.

(ibidem, p. 88)

Yvon Linant de Bellefonds summarises the point by noting that ‘the word ‘aqd has a very large connotation [in classical fiqh]... which embraces any kind of commitment, either the contract or the unilateral obligation;’ ‘every manifestation of will that ties its author and binds him is an ‘aqd? (1965, p. 62; my translation). For Chafik Chehata, ‘the ‘aqd... is the juristic act, both as contract or a as simple unilateral declaration, such as the testament’ (1960). Interestingly, the term ‘aqd appears in the Qur’an only in two passages (Q. 2:235 and Q. 2:237), both with reference to the contract of marriage (nikdh) (as noted by Chehata, 1970b, p. 124).

Given these general borders, the chapter will explore the city by focusing on the role of human will and rationality in performing the action (section 3.4) and, later, on the empirical elements involved in the formation of the contract (section 3.5). This investigation of the ‘aqd in comparison with civil/com- mon law categories will finally lead to conclusive reflections over the totality (third level, 3L, in Bhaskar’s dialectic) of the Islamic contract in fiqh normative pluralism, where the non-identity of law-religion will reformulate its rationales from an idea of bargain (common law) and consent (civil law) to the perfor­mance of God’s will (section 3.6).

3.4.