A unity of diversities: fiqh pluralism and the totality (3L) of the ‘aqd as the performance of God’s will

From the role of intention (niyya) and rationality (‘aql) (section 3.4) to the construction of the contract between divine creation and human agency (sec­tion 3.5), this chapter has guided our journey in ‘crafting the place’ of the ‘aqd as a work of local knowledge (section 3.1) that specifically belongs to Muslim fiqh.

After visiting the city of the ‘aqd along the itineraries of the madhahib, we can report to the Arab Girl some conclusive remarks about the nature of the Islamic contract.

In the search of orientation, the problem of how to craft the ‘aqd as a space of local knowledge has led our investigation to conceive the ‘city’ as a signify­ing practice, with the ‘aqd itself being a vehicle of legal meaning; a medium of Islamic nomos (see Introduction). For us, the riddle of the Sphynx of Thebes has taken the form of the question ‘what is the meaning of the ‘aqd as a signi­fying practice in Muslim legal tradition?’

Moving away from the bias embedded in the representation of fiqh as a dec­adent system of law, as mirrored in the improper corpus of Gerome’s Almeh, still at the borders of the city (section 3.3.3), we have advanced the prelimi­nary definition of the ‘aqd as an act of disposal (tasarruf) of property rights

(huquq). The investigation of fiqh normative pluralism has shown the coex­istence of a plurality of different interpretations in an iurisdictio where legal opinions are ramified and cases proliferate in their distinction, moving from unified principles: a multiplicity of voices where the geometric (visual) space of Western law is replaced by a ‘sacred law without Corpus’ (section 2.4.5).

Within the space of Islamic din, it is not the free will of the parties to make the contract binding. On the contrary, it is the adherence to the Law, the performance of God’s will, that renders the ‘aqd valid and enforceable. As discussed in section 3.5.2, the agreement (taradi), grounded on the verbal coincidence between offer and acceptance (ijab and qabul), does not equal the idea of mutual consent of the civil law tradition. Quite the opposite - the idea of ‘agreement or consensus as such does not enter into the Islamic theory of contracts’ (Schacht, 1964, p. 22), to the extent that neither the word ‘agree­ment’ (ittifaq) nor the verb ‘to come to an agreement’ (ittafaqa) are used in fiqh sources in the sense of ‘coincidence of wills’ (Chehata, 1971, p. 164); in the same way, the human will (irada) never appears in classical texts in relation to the Western modern idea of consent.

In a world ruled by God’s will in any instant of the creation, where ijab, making something wajib, ‘means etymologically not “to offer” but “to make definite, binding, due” ’ (Schacht, 1964, p. 22), the agreement (taradi) is nei­ther promissory nor obligatory; rather, it assumes the connotation of a mutual assent, approval of the parties (Hamid, 1977) to the conferral of properties (Zysow, 1985-86) according to the rules already established by Law, in a con­ceptual framework where man’s rational component overrides the role of the human will. It is this rational component that plays a fundamental role in the construction of the ‘aqd (the ‘reason,’ ‘aql, of the human beings, responsible agents of God); correspondingly, the fundamental nature of the ‘aqd is not that of a contract-consent (civil law) nor of a contract-bargain (common law) (see back, section 3.3), but of a performance of God’s will.

irada niyya qasd khiyar rida

HUMAN INTENTION (niyya) and RATIONALITY ('aqf)

HUQUQ AL-'AQD

'ayn

taradi

ai-khiyarat

fjjäb + qabüi)

TRANSFER of PROPERTIES

/ dayn properties

dhimma

conditions related to the subject-matter

prohibitions of riba, gharar, maysir

Hukm al-'aqd

REVELATION (divine justice, 'ad!)

'ii/a / sabab + arkan and surutunderlying the action (sar'i act)

Diagram 3 The ‘aqd as conceived in the tradition of Muslim fiqh (author's elaboration)

Diagram 3 provides a conclusive representation of the various components of the ‘aqd, whose unity resides in the performance of God's revelation by the Muslim agent. As suggested, the reader may imagine the contractual construc­tion as a building whose various components operate in harmony to reach justice in the transfer of properties: a divine justice (^eadt), which has been revealed in God's rule (hukm) and made real by means of man's right (haqq).

At the end of our visit to the city of the ‘aqd, before examining what trans­formations it has experienced over the centuries (Chapter 4), our conclusions can be supported by referring to some great scholars, whose positions sum­marise the contents of our investigation.

As remarked in these pages, the ‘aqd is not a consensual agreement that is a source of obligations, but a disposition by words (tasarruf al-qawliyya) (materially expressed in a sighah) whose legal effect (hukm) is already estab­lished by God. The point is confirmed by the great Egyptian jurist al-Sanhuri, who notes how ‘the centre of a contract... [is] its subject matter and not an obligation.... [The contract is] the connection of an offer with an acceptance, not necessarily with the view of creating obligations but of bringing a change to the status of the subject matter' (Sanhuri (1954-1959), Masadir al-Haqq fi l-Fiqh al-Islami, quoted in Hassan, 2002, p. 261).

The very root of the Islamic ‘aqd is not the exchange of promises or obliga­tions (as it is, respectively, in common law and civil law), but the concurrence of mutual declarations in the exchange of property as established by Law; by echoing God’s revelation in reality, it essentially adheres to a model of exe­cuted performance. On this matter, Muhammad Y. Musa, in his al-Amwdl wa Nazariyyat al-‘Aqd, underlines that

[t]he will [human intention] gives rise... to the juristic act (‘aqd), but it is the Sari‘a that organises the effects and the consequences of that act. This is the reason why the fuqaha’ say that the acts have been endowed [italics in the original text] by the Sari‘a with their effects and consequences and their object. Here they signify that the relation between the act itself and its consequences, considering the act as the cause and the consequences as the effect of the cause, is not a relation based on the nature of things and logic, as if the effect would necessarily follow from the cause, but that it is the Sari‘a that establishes this relationship among them.

(quoted by Linant de Bellefonds, 1965, p. 225; my translation)

Thus, according to Linant de Bellefonds, ‘the role of human will is limited to giving rise to the juristic act; as far as the content of this act is concerned, it has already been fixed by the Sari’a, and the human being has no possibil­ity either to modify it, or to enlarge it or even to limit its effects’ (ibidem; my translation).

In line with the interpretation of this book, Chafik Chehata also remarks how

[i]n Islamic law, a contract is... [formed] by two declarations made by each of the contracting parties. Once formed, all its legal effects follow, inescapably. It is not the “will” of the parties making the declarations which gives the contract its binding character. The declaration itself is an evident, fundamental fact; in turn, it presupposes a rational act. Thus, at a more philosophical level, the declaration implies, rather, something more of reason than of will. Once the conditions for the formation of the con­tract are fulfilled, the consequences follow as a matter of law. Islamic law attributes no power to the will to create obligations. For this reason, there can be no doctrine of “autonomy of will”.

(Chehata, 1970a, p. 139 - italics added; in similar terms, Chehata, 1970b, pp. 139-140)

Moreover, dealing with the role of the objet, Chehata adds that

[t]he decisive element of the legal relation lies in the object. The object takes place between the two persons who enter into the relationship through it. This relationship, of which the object is the specific term, is constituent of the right. The title that founds the right of the subject is the reason which establishes a link of belonging between him and the object.

Once this relationship has been concretely realised, a state of adjust­ment and of equilibrium must rule: everything in its [due] place.

The subject ruled by Law is certainly obliged towards the other party but his obligation has no other object than the thing or the act which is due.

The presence of an object between the contracting parties is the fea­ture of the contractual relationship. It gives to the contract its objective nature: through it the concrete realization of the effects of the contract establishes not only an equilibrium among the persons, but it creates a ‘state of things’ [settlement of entitlement], a social state, properly said.

(Chehata, 1968a, p. 141; my translation)³⁷

This explanation coherently matches the essence of the right (haqq) in Islam as ‘a sort of substance that has a constant volume, of which some parts may hap­pen to be not where they belong, not in the due place; and justice means the necessity of returning them to where they should be’ (Smirnov, 1996, p. 344; see section 3.3.3).³⁸ Accordingly, it can be said that the contracting parties enter the contract by means of the object, and the doctrines of the (civilian) cause and (English) consideration are replaced by a principle of equivalence of the counter-values (Chehata, 1969, pp. 67-70).

Broadly, Islamic law finds the binding force of a contract in the notion of equivalence of performances. Therefore, contracts containing recipro­cal obligations are the only ones which are wholly irrevocable. The gift is essentially revocable. The same applies to the loan of a movable or an immovable, partnership, bailment, and gratuitous agency. It is this notion of mutuality which explains the Islamic theory of interest. Inter­est of any kind, at any rate whatever, whether for a loan or in any other circumstance is prohibited, so to speak, by definition.

(Chehata, 1970a, p. 140)

Notes

1 Introductory note to the exhibition Talking Maps, displayed at the Bodleian Wes­ton Library in Oxford from 5 July 2019 to 8 March 2020 - which I visited in August 2019.

2 The role of legal texts in defining how law works in a certain society will be further explored in Chapter 4, with specific reference to the notion of ‘textual polity’ by Brinkley Messick (1993).

3 To the extent that ‘the most obvious shaping factor, in any work of Islamic law, is its engagement with the past of a particular tradition, and its loyalty to it’ (Calder, 1996, p. 980).

4 The Asl is only one of the six volumes known as zahir ar-riwaya, ‘the authorised version’ of al-Saybani’s writings, which still today represents the core of the Hanafi madhhab (and is usually opposed to a similar number of other works known as ghayr zahir ar-riwaya, ‘the unauthorised version’).

The term is also employed to describe liberal (tabarru^cM) or unilateral acts (e.g. guarantee), as well as juristic acts (e.g. testament) or the ‘aqd of marriage (nikah). In other words, it is not the idea of bargain that fosters the contract of civil law, but rather, the recognition of man’s freedom as the ‘value’ that makes a promise bind­ing to the person through consent. Consequently, a donation is a contract in civil law, as expression of free will, but not in common law, due to the lack of considera­tion. I take the notions of contract-bargain and contract-consent from an article by A. G. Chloros (1968), specifically pp. 139-140.

In particular, Decock explores the role of causa in relation to how Christian theo­logians re-adapted the doctrine of ‘just price’ to give ‘just foundation’ to equality in contractual matters.

For instance, H. Patrick Glenn, in his book Legal Traditions in the World (2000), distinguishes the tradition of civil law by speaking of ‘the centrality of the person’ and that of common law in relation to an ‘ethic of adjudication’ (see respectively, Chapter 5 and Chapter 7).

On this point, see Schacht, 1964, pp. 124-133; Milliot, 1953, pp. 207-230. Louis Milliot relates the concept of ahliyya directly to that of dhimma, ‘la qualite qui lui [the person] permet de faire ce d quoi elle a droit ou est oblige... C'est la capacite, privilege et charge, inseparable de la nature humaine et inevitable’ (1953, p. 221). Arabi specified that this Prophet’s saying can be found

in the third/ninth century hadith collections of al-Bukhari (al-Jami‘al-Sahih, Beirut n.d.; p. 2) and Muslim (Sahih al-Imam Muslim, Cairo: 1344 AH; p. 1907). As it has numerous applications in daily life, and especially in acts of worship, it later came to be designated as one of the generic fundamental rules of the law (qawa‘id al-shar‘).

(1997, p. 211, note 29)

On this point, Linant de Bellefonds criticises al-Sanhuri, who identified the notion of ‘cause’ in Muslim fiqh as equivalent to that of the motif determinant of French scholarship; in reality,

les quelques solutionsgrapillees ici et ld, que l'on tente laborieusement d'expliquer par un recours d la notion de cause finale, n'ont pas assez de densite pour qu'il soit possible d'affirmer que le Fiqh a fait de la cause un element indispensable d la validite de l'acte juridique.

(1965, p. 295; for a comparative investigation, pp. 281-305)

On the problem of the autonomie de la volonte, see also Linant de Bellefonds, 1958b; on the purposive approach by al-Sanhuri, see here, Chapter 4.

The concept of sabab as the immediate purpose (al-gharad al-mubasar) of the con­tract (Art. 165 Jordan Civil Code) or the motive (ba‘ith) that causes the contracting parties to enter the contract (Art. 176, par. 2, Kuwaiti Civil Code) appears in the leg­islation of Arab countries influenced by Western models (Saleh, 2001, pp. 349-350). For a concise investigation of the topic with reference to the legislation of Arab countries, with its divergence from classical Islamic law, see Saleh, 2001.

The underlying principle in contracts and stipulations is permissibility [ibaha] and validity. Any [contract or stipulation] is prohibited and void only if there is an explicit text or a qiyas [analogy] (for those who accept qiyas) proving its prohibition and voiding.

(Ibn Taymiyya; quoted by Vogel, 2006, p. 29)

No contract is nullified except due to its own terms.... Sale contracts are not nullified on grounds of pretext or evil intention (niyyatsu^r).... Thus if a man buys a sword intending to kill with it, the sale is permissible; though the inten­tion is not admissible, it does not invalidate the sale.... The Book, followed by the Sunna and the general judgment of Islam, all indicate that contracts have legal effect according to their manifest content and are not invalidated by the intention of the parties.

(SafiT, Kitab al-Umm, 7 vols. (Cairo, 1325 AH), vol. 7, 270, quoted in Arabi, 1997, p. 210)

The principle I follow is that any contract which is valid in appearance, I do not nullify (anna kull ‘aqd kana sahthan fi'l-zahir lam ubtilhu) on grounds of suspecting the parties: I validate it by the validity of its appearance; I take their intention to be reprehensible (akrah lahuma al-niyya) if - were it made explicit - that intention would invalidate the sale.

(ibidem, p. 212)

16 Nevertheless, as recognised both by Linant de Bellefonds (1965, pp. 293-294) and Arabi (1997, pp. 214-215), the notion of relevant ‘determining motive,’ as final aim of the parties (the Western cause), finds relevance in the classification by the Hanafis of liberal acts (tabarru‘at); that is to say, outside the genre of synallagmatic contracts (mu‘dwadat). The distance from bilateral transactions is also remarked by the terminology used; in fact, the notion used for liberal acts is not niyya, but maqsud (‘aim,’ ‘purpose’). Accordingly, as Linant de Bellefonds notes, ‘Kasani, in his outline of the rules of the sale, the specimen of contract par excellence, avoids the word maqsud (1965, p. 295; my translation).

17 Fraud (dol) refers to every artifice by which a person deceives another for the purpose of concluding a contract. Fraud includes fraudulent misrepresentation or any other conduct that nullifies the apparent consent between the parties, due to bad faith.

18 In English contract law, misrepresentation refers to any false statement of fact that induces the other party to enter the contract. As a vitiating factor it allows the innocent party to rescind the contract (which is voidable, not void). While a mistake is inadvertent, a misrepresentation is often wilful and intentional, made with the intention to deceive (an exception in English law is the case of innocent misrepresentation).

19 More precisely, the limit is strictly imposed by Abu Hanifah but not by his two fol­lowers, as-Saybani and Abu Yusuf (D’Emilia, 1957).

20 For some exceptions, see Linant de Bellefonds, 1965, pp. 126-129; Santillana, 1938, pp. 20-21.

21 In this regard, Messick notes how

[i]n Arabic, verbs in this tense have a ‘past’ form and are analyzed this way by the Arab grammarians. For the western Arabist, however, the grammatical cat­egory for this tense is known as the ‘Perfect’, and in such contexts the preferred translation for what I have rendered as ‘I sold’ would be a modified present or ‘performative’ form, such as ‘I hereby sell’. I have rendered these verbs in the past tense in English in an attempt to follow the Islamic jurists, for whom mark­ing the completing of the legal act is a central analytic feature.

(2001, p. 157, note 14)

22

Here the Malikis and Hanafis hold that once a contract has been concluded by corresponding offer and acceptance, neither of the parties may retract their declarations, whether or not the Majlis has been terminated. Contrastingly, the Hanbalis and Shafi‘is regard such declarations as provisional for the duration of the Majlis.

(Rayner, 1991, p. 109)

22 Q. 2:233, in fact, deals with the matter of weaning (‘The mothers shall give suck to their offspring for two whole years, if the father desires, to complete the term’) by ‘mutual consent’ (an taradin); nevertheless, the sense is not that of a ‘agreement as source of obligations,’ but of a pact.

23 Wehr (1979) renders the meaning as ‘coincidence, congruence, congruity; agree­ment; conformity... ; covenant, compact, convention, contract:’ p. 1272; ittifaq as verbal noun derived from the VIII form of the root W-F-Q, ‘to be right, proper, suitable, fit, appropriate,’ and hence, ittafaqa, ‘to agree, come to an agreement, reach an agreement... ; to make a contract, conclude an agreement’: ibidem, p. 1271.

24 Solo consensus obligat: the agreement, without the need for special formalities, is sufficient to make the contract legally binding - with the immediate transfer of ownership in the property of goods.

25 In the same terms, Chehata remarks how

[l]e ‘aqd en droit musulman, n'est pas tant un acte generateur d'obligations, qu'un acte juridique creant une nouvelle situation de droit ou modifiant une situ­ation preexistante. Le vendeur sera naturellement tenu de livrer la chose vendue, de meme que l'acquereur devra en payer le prix. Mais ces obligations ne sont pas considerees comme les effets (hukm) du contrat, maisproprement comme les droits du contrat (huquq al-‘aqd).

(Chehata, 1960, p. 328)

26 Linant de Bellefonds remarks how

the fuqaha’ have established a set of rules which... for their breadth and meticulousness contrast with the few and concise prescriptions... [of] Western systems, where all this is often reduced to the assertion that the object must be possible and in commerce.

(1965, p. 184; my translation)

‘Just to give an example, Kasani, Bada'i‘,... devotes not less than 15 pages, size in-quarto, to three conditions that the object has to fulfil... : to exist, to be deliverable, to be licit’ (ibidem, p, 184, note 1; my translation).

27 The fuqaha' admit two explicit exceptions to the rule: the future contract salam (authorised directly by the Prophet) and contract to manufacture, istisna‘ (admit­ted by istihsan) (Linant de Bellefonds, 1965, pp. 186-191; Rayner, 1991, p. 134-138).

28 The sacred nature of properties, whose Owner is only God, is remarked in many passages of the Qur’an (see for instance Q. 2:188; Q. 4:29; Q. 7:128; Q. 57:5; Q. 4:32).

29 In this section I re-elaborate the contents of my research on the concepts of ‘ayn and dayn, as published in Arab Law Quarterly (Cattelan, 2013). I am grateful to the journal for the permission to reproduce.

31

Dhimma is generally defined as a presumed or imaginary repository that con­tains all the rights and obligations relating to a person. It is like a container that embraces all the financial and other rights and obligations in the present and the future. Al-Zarqa’ presents dhimma ‘as a juristic container presumed in a person in order to encompass all its debts and obligations that are related to it’...........................................................................................................

Dhimma might continue to exist after the death of the person up to the time when all its rights and obligations are settled.

(Zahraa, 1995, pp. 203-204)

30 The words maysir or qimar are used in fiqh with the same meaning, although only the word maysir, referring to a form of game (see in the main text), appears in the Qur’an, while qimar, deriving from the root Q-M-R, refers to what increases at times and decreases at other times.

31 In this sense, in his Dictionary, Wehr describes maysir as ‘an ancient Arabian game of chance (forbidden by the Qur’an) played with arrows without heads and feather­ing, for stakes of slaughtered and quartered camels.’

32 The hadith

[g]old for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for salt, like for like, equal for equal, hand to hand. If these types [asnaf] differ, then sell them as you wish, if it is hand to hand

covers riba in sales of two kinds:

with delay, and immediate (hand-to-hand). The first is called riba of delay (riba 'l-nast'a), applying to credit transactions, and the second is called riba of excess (riba 'l-fadl), applying to barter and currency exchange.

(Vogel, 2006, p. 19)

33 A comprehensive collection of the various juristic definitions ofgharar is provided by El-Gamal: ‘Al-Qarafi... states: “The origin ofgharar is that which is not known to occur or not (e.g. birds in the sky or fish in the water). On the other hand, that whose existence is known, but whose characteristics are unknown (e.g. when a seller sells that which is hidden in his sleeve), it is called majhul (unknown). Thus, the definitions ofgharar and ignorance are each more general in some respects and less general in other respects... This is the reason for the [legal] scholars’ differences over the nature ofgharar and jahalah (ignorance).” We may contrast this defini­tion with those collected in Al-Zuhayli: 1. Al-Sarakhsi of the Hanafi school defines gharar thus: “gharar is that whose consequences are hidden”. 2. Al- Shiraazi of the Shafi‘i school said: “gharar is that whose nature and consequences are hidden”. 3. Al-‘Isnawi of the Shafi‘i school said: “gharar is that which admits two possibili­ties, with the less desirable one being more likely”. 4. ‘Ibn Taymiya of the Hanbali school said: “gharar is that whose consequences are unknown”. His student ‘Ibn Al-Qayyim said: “it is that which is undeliverable, whether it exists or not”. 5. ‘Ibn Hazm of the Zahiri school said: “gharar is where the buyer does not know what he bought, or the seller does not know what he sold”. 6. Dr. Al-Zuhayly’s sum­mary definition is thus: “gharar sale is any contract which incorporates a risk which affects one or more of the parties, and may result in loss of property”. 7. A more explicit definition by Professor Mustafa al-Zarqa’ is the following: “gharar is the sale of probable items whose existence or characteristics are not certain, due to the risky nature which makes the trade similar to gambling”. That final definition by Professor al-Zarqa’ seems to be the most appropriate one to use. It subsumes all the other definitions as special cases, and makes explicit that the payoffs from the gha- rar exchange are rendered risky by the probable nature of some of its cornerstones (in terms of existence or characteristics)’ (El-Gamal, 2001, pp. 5-6).

36

(1) difficulty in performing delivery of the subject matter; (2) lack of sufficient knowledge (jahl) regarding the type of the price or the subject matter; (3) lack of sufficient knowledge regarding the characteristics of the price or of the sub­ject matter; (4) lack of sufficient knowledge with regard to the quantum of the price or the quantity of the subject matter; (5) lack of sufficient knowledge with regard to the date of future performance; (6) two sales in one transaction (bay‘atan fi bay‘atin); (7) the sale of what is not expected to revive; (8) Bay‘al- hasah, which is a type of sale whose outcome is determined by the throwing of a stone; (9) Bay‘al-munabadhah, which is a sale performed by the vendor throwing a cloth at the buyer and concluding the sale transaction without giv­ing the buyer the opportunity to properly examine the object of the sale; (10) Bay‘al-muldmasah, where the bargain is concluded by touching the object of the sale without examining it.

(Zahraa and Mahmor, 2002, p. 387)

34 Significantly, Chehata uses in the passage the phrase ‘l'assujetti au droit’ (he who is subjected to the law) and not ‘sujet de droit (subject of law) (Chehata, 1968a, p. 141) (for my translation of mahkùm lahu as ‘ruled subject,’ see section 3.3.1).

35 In an article dedicated to the possible influence that classical Islamic law had on the origins of the English system of common law, John Makdisi concentrates specifically on the existence of a legal imbalance, and the need to re-establish an equivalence:

[t]he passing of ownership of the object of sale upon the conclusion of the con­tract created a legal imbalance.... This imbalance required the buyer to give up the price to the seller in order to restore balance between the parties. In this situation, Islamic law operated on a principle of equivalence. The imbalance was the source of the contractual obligation on the buyer to pay the price.

(Makdisi, 1999, p. 1652)

References

Abd-Allah, U.F. (2008) Theological dimensions of Islamic law. In: Winter, T. (ed.) The Cambridge Companion to Classical Islamic Theology. Cambridge: Cambridge Uni­versity Press, pp. 237-257.

Ahmed, S. (2016) What Is Islam? The Importance of Being Islamic. Princeton and Oxford: Princeton University Press.

Al-Fadl, K.A. (1991) The common and Islamic law of duress. Arab Law Quarterly. 6(2), pp. 121-159.

Anderson, J.N.D. (1975) Islamic law and structural variations in property law. Interna­tional Encyclopaedia of Comparative Law. II.

Arabi, O. (1995) Al-Sanhuri’s reconstruction of the Islamic law of contract defects. Journal ofIslamic Studies. 6(2), pp. 153-172.

Arabi, O. (1997) Intention and method in Sanhuri’s fiqh: cause as ulterior motive. Islamic Law and Society. 4(2), pp. 200-223.

Arabi, O. (1998) Contract stipulations (shurùt) in Islamic law: the Ottoman Majalla and Ibn Taymiyya. The International Journal of Middle East Studies. 30(1), pp. 29-50.

Bhaskar, R. (1993) Dialectic: The Pulse of Freedom. London: Verso.

Billah, M.M. (1998) Caveat emptor versus khiyar al-‘aib: a dichotomy. Arab Law Quarterly. 13(3), pp. 278-299.

Bodleian Library (2019) Talking Maps, exhibition. Online Introduction. Available at: www.bodleian.ox.ac.uk/whatson/whats-on/upcoming-events/2019/july/talking- maps. Accessed 2 August 2019.

Bowering, G. (1997) The concept of time in Islam. Proceedings of the American Philo­sophical Society. 141(1), pp. 55-66.

Brunschvig, R. (1976a) Devoir et pouvoir: histoire d’un problème de theologie musul­mane. In: Brunschvig, R. (ed.) Etudes d'Islamologie, Vol. I. Paris: Maisonneuve et Larose, pp. 179-220.

Brunschvig, R. (1976b) Theorie generale de la capacitò chez les hanafites medievaux. In: Brunschvig, R. (ed.) Etudes d'Islamologie, Vol. II. Paris: Maisonneuve et Larose, pp. 37-52.

Brunschvig, R. (1976c) Corps certain et chose de genre dans l’obligation en droit musulman. In: Brunschvig, R. (ed.) Etudes d'Islamologie, Vol. II. Paris: Paris: Mai- sonneuve et Larose, pp. 303-322.

Buskens, L., and Dupret, B. (2015) The invention of Islamic law: a history of Western studies of Islamic normativity and their spread in the orient. In: Pouillon, F., and Vatin, J.-C. (eds.) After Orientalism: Critical Perspectives on Western Agency and Eastern Re-Appropriations. Leiden and Boston: Brill, pp. 31-47.

Calder, N. (1996) Law. In: Nasr, S.H., and Leaman, O. (eds.) History of Islamic Phi­losophy, Part II. London: Routledge, pp. 979-998.

Cattelan, V. (2009) From the concept of haqq to the prohibitions of ribd, gharar and maysir in Islamic finance. International Journal of Monetary Economics and Finance. 2(3-4), pp. 384-397.

Cattelan, V. (2013) Property (mad) and credit relations in Islamic law: an explanation of dayn and the function of legal personality (dhimma). Arab Law Quarterly. 27(2), pp. 189-202.

Chehata, C. (1960) ‘Aqd. In: Bearman, P., Bianquis, T. et al. (eds.) Encyclopaedia of Islam, 2nd ed. Leiden: Brill and Paris: Maisonneuve et Larose.

Chehata, C. (1968a) Le concept de contrat en droit musulman. Archives de Philosophie du Droit. 13, pp. 129-141.

Chehata, C. (1968b) Le contrat en droit musulman. Zeitschrift für Vergleichende Rechtswissenschaft. 70, pp. 81-96.

Chehata, C. (1969) Theorie Generale de l'Obligation en Droit Musulman Hanefite: Les Sujets de l'Obligation. Paris: Editions Sirey.

Chehata, C. (1970a) Islamic law. In: International Encyclopedia of Comparative Law, Vol. II, The Legal Systems of the World, Their Comparison and Unification, Ch. 2, Structure and the Divisions of the Law. Leiden: Martinus Nijhoff Brill; Tübingen: J.C.B. Mohr Siebeck, pp. 138-142.

Chehata, C. (1970b) Droit Musulman: Applications au Proche-Orient. Paris: Dalloz.

Chehata, C. (1971) Etudes de Droit Musulman. Travaux et Recherches de la Faculte de Droit et des Sciences Economiques de Paris. Paris: Presses Universitaires de France.

Chehata, C. (1973) Etudes de Droit Musulman, 2 / La Notion de Responsabilite Con- tractuelle: Le Concept de Propriete. Paris: Presses Universitaires de France.

Chehata, C. (1977) Dhimma. In: Bearman, P., Bianquis, T. et al. (eds.) Encyclopedie de l'Islam, 2nd ed., Vol. II. Leiden: Brill and Paris: Maisonneuve et Larose, p. 238.

Chloros, A.G. (1968) The doctrine of consideration and the reform of the law of contract: a comparative analysis. The International and Comparative Law Quarterly. 17(1), pp. 137-166.

Comair-Obeid, N. (1996) Particularity of the contract’s subject-matter in the laws of the Arab Middle East. Arab Law Quarterly. 11(4), pp. 331-349.

Coulson, N.J. (1984) Commercial Law in the Gulf States: The Islamic Legal Tradition. London: Graham and Trotman.

Cover, R.M. (1983) The Supreme Court, 1982 term - Foreword: nomos and narrative. Harvard Law Review. 97(1), pp. 4-68.

Decock, W. (2013) Theologians and Contract Law: The Moral Transformation of the Ius Commune (Ca. 1500-1650). Leiden: Brill.

Delcambre, A.-L. (1981) Dayn. In: Bearman, P., Bianquis, T. et al. (eds.) Encyclopedie de l'Islam, 2nd ed., Supplement Livraison 3-4. Leiden: Brill and Paris: Maisonneuve et Larose, pp. 206-207.

D’Emilia, A. (1957) Il khiyar ash-shart nel Asl di Shaybani. Rivista degli Studi Orien­tali. 32, pp. 633-640.

Eagleton, T. (1991) Ideology: An Introduction. London: Verso.

El-Gamal, M.A. (2000) An Economic Explication of the Prohibition of Riba in Classi­cal Islamic Jurisprudence. Proceedings of the Third Harvard University Forum on Islamic finance, Center for Middle Eastern Studies, Harvard University, Cambridge, MA, pp. 3-8.

El-Gamal, M.A. (2001) An Economic Explication of the Prohibition of Gharar in Clas­sical Islamic Jurisprudence. Paper presented at the 4th International Conference on Islamic Economics, Leicester, 13-15 August 2000. Also in Islamic Economic Stud­ies, 2001. 8(2), pp. 29-58.

El-Gamal, M.A. (2006) Islamic Finance: Law, Economics and Practice. Cambridge: Cambridge University Press.

El-Hassan, A.W.A. (1985) Freedom of contract, the doctrine of frustration, and sanc­tity of contracts in Sudan law and Islamic law. Arab Law Quarterly, 1(1), pp. 51-59.

Geertz, C. (1983) Local knowledge: fact and law in comparative perspective. In: Geertz, C. (ed.) Local Knowledge: Further Essays in Interpretive Anthropology. New York: Basic Books, pp. 167-234.

Glenn, H.P. (2000) Legal Traditions in the World: Sustainable Diversity in Law. Oxford: Oxford University Press.

Hallaq, W.B. (1985-1986) Legal reasoning in Islamic law and common law: logic and method. Cleveland State Law Review. 34, pp. 79-96.

Hamid, M.E. (1977) Mutual assent in the formation of contracts in Islamic law. Jour­nal of Islamic and Comparative Law. 7, pp. 41-53.

Hassan, H. (2002) Contracts in Islamic law: the principles of commutative justice and liberality. Journal of Islamic Studies. 13(3), pp. 257-297.

Islam, MW. (1999) Al-mal: the concept of property in Islamic legal thought. Arab Law Quarterly. 14(4), pp. 361-368.

Jackson, S.A. (1996) Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qgrrafi. Leiden: Brill.

Kamali, M.H. (1999) Uncertainty and risk-taking (gharar) in Islamic law. IIUMLaw Journal. 7(2), pp. 199-216.

Linant de Bellefonds, Y. (1958a) Volonte interne et volonte declaree en droit musul- man. Revue Internationale de Droit Compare. 10(3), pp. 510-521.

Linant de Bellefonds, Y. (1958b) L’autonomie de la volonte en droit musulman. Revue Algerienne, Tunisienne et Marocaine de Legislation et de Jurisprudence. 74(2), pp. 87-111.

Linant de Bellefonds, Y. (1965) Traite de Droit Musulman Compare, 3 Vols. Vol. 1, Theorie Generale de l’Acte Juridique. Paris and La Haye: Mouton & Co.

Linant de Bellefonds, Y. (1977) Fasid wa-batil. In: Bearman, P., Bianquis, T. et al. (eds.) Encyclopedie de l'Islam, 2nd ed., Vol. II. Leiden: Brill and Paris: Maisonneuve et Larose, pp. 849-852.

Makdisi, J.A. (1999) The Islamic origins of the common law. North Carolina Law Review. 77, pp. 1635-1739.

Mallat, C. (2007) Introduction to Middle Eastern Law. Oxford: Oxford University Press.

Messick, B. (1993) The Calligraphic State: Textual Domination and History in a Mus­lim Society. Berkeley: California University Press.

Messick, B. (2001) Indexing the self: intent and expression in Islamic legal acts. Islamic Law and Society. 8(2), pp. 151-178.

Milliot, L. (1953) Introduction d l'tetude du Droit Musulman. Paris: Recueil Sirey.

Pollock, F. (1911) Principles of Contract: A Treatise on the General Principles Con­cerning the Validity of Agreements in the Law of England, 8th ed. London: Stevens and Sons.

Powers, P.R. (2006) Intent in Islamic Law: Motive and Meaning in Medieval Sunni Fiqh. Leiden and Boston: Brill.

Ranouil, V. (1980) LAutonomie de la Volonte: Naissance et Evolution d'un Concept. Travaux et Recherches de l’Universite de droit, d’Economie et de Sciences Social de Paris. Paris: Presses Universitaire de France.

Rayner, S.E. (1991) The Theory of Contracts in Islamic Law: A Comparative Analysis with Reference to the Modern Legislation in Kuwait, Bahrain and the United Arab Emirates. Arab and Islamic Laws Series. London, Dordrecht and Boston: Graham & Trotman.

Rosen, L. (2000) The Justice of Islam: Comparative Perspectives on Islamic Law and Society. Oxford: Oxford University Press.

Said, E.W. (1978) Orientalism. London and Henley: Routledge & Kegan Paul.

Saleh, N. (1990) Definition and formation of contract under Islamic and Arab laws. Arab Law Quarterly. 5(2), pp. 101-116.

Saleh, N. (1992a) Unlawful Gain and Legitimate Profit in Islamic Law: Riba, Gharar and Islamic Banking, 2nd ed. London: Graham & Trotman.

Saleh, N. (1992b) Are the validity and construction of legal acts affected by cause (sabab)? (A comparative study under Islamic and Arab laws). Arab Law Quarterly. 7(2), pp. 116-140.

Saleh, N. (1998) Origins of the sanctity of contracts in Islamic law. Arab Law Quar­terly. 13(3), pp. 252-264.

Saleh, N. (2001) Freedom of contract: what does it mean in the context of Arab laws? Arab Law Quarterly. 16(4), pp. 346-357.

Sanhurl, A.R.A. (1954-1959) Masadir al-Haqq fl l-Fiqh al-Islami, Dirasa Muqarina bi-l-Fiqh al-Gharbi (The Bases of Right in Islamic Law, a Comparative Study with Western Law), 6 Vols. Cairo: Jami‘ah ad-Duwal al-Arabiyya.

Santillana, D. (1938) Istituzioni di Diritto Musulmano Malichita con Riguardo Anche al Sistema Sciafiita, Vol. II. Roma: Istituto per l’Oriente.

Schacht, J. (1964) An Introduction to Islamic Law. Oxford: Clarendon Press.

Schacht, J. (2012) Riba. In: Bearman, P., Bianquis, T. et al. (eds.) Encyclopaedia of Islam, 2nd ed. Leiden: Brill and Paris: Maisonneuve et Larose. Online edition. Accessed 15 March 2019.

Smirnov, A. (1996) Understanding justice in an Islamic context: some points of con­trast with Western theories. Philosophy East & West. 46(3), pp. 337-350.

Stelzer, S.A.J. (2008) Ethics. In: Winter, T. (ed.) The Cambridge Companion to Classi­cal Islamic Theology. Cambridge: Cambridge University Press, pp. 161-179.

Van de Bergh, S. (1975) Ayn. In: Bearman, P., Bianquis, T. et al. (eds.) Encyclopaedia of Islam, 2nd ed. Leiden: Brill and Paris: Maisonneuve et Larose.

Van Ess, J. (1970) The logical structure of Islamic theology. In: Von Grunebaum, G.E. (ed.) Logic in Classical Islamic Culture, First Giorgio Levi della Vida Biennial Conference, Near Eastern Centre, University ofCalifornia, Los Angeles, May 12,1967. Wiesbaden: Otto Harrassowitz, p. 23 ff.

Vogel, F.E. (2006) Contract law of Islam and the Arab Middle East. In: International Encyclopedia of Comparative Law, Vol. VII, Contracts in General, Chapter 7. Tübin­gen: Mohr Siebeck; Dordrecht, Boston and Lancaster: Martinus Nijhoff Publishers.

Wakin, J.A. (1972) The Function of Documents in Islamic Law. New York: State Uni­versity of New York Press.

Wehr, H. (1979) A Dictionary of Modern Written Arabic (Arabic-English) (ed. by Cowan, J.M.), 4th ed. Wiesbaden: Harrassowitz.

Yanagihashi, H. (2004) A History of the Early Islamic Law of Property: Reconstructing the Legal Development, 7th-9th Centuries. Leiden: Brill.

Yanagihashi, H. (2013) Contract law. In: Fleet, K., Krämer, G. etal. (eds.) Encyclopae­dia of Islam, 3rd ed. Leiden: Brill. Accessed 18 February 2020.

Zahraa, M. (1995) Legal personality in Islamic law. Arab Law Quarterly, 10(3), pp. 193-206.

Zahraa, M. (1998) Negotiating contracts in Islamic and Middle Eastern laws. Arab Law Quarterly. 13(3), pp. 265-277.

Zahraa, M., and Mahmor, S.M. (2001) Definition and scope of the Islamic concept of sale of goods. Arab Law Quarterly. 16(3), pp. 215-238.

Zahraa, M., and Mahmor, S.M. (2002) The validity of contracts when the goods are not yet in existence in the Islamic law of sale of goods. Arab Law Quarterly. 17(4), pp. 379-397.

Zysow, A. (1985-86) The problem of offer and acceptance: a study of implied-in- fact contracts in Islamic law and common law. Cleveland State Law Review. 34(1), pp. 69-77.

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