Verbal Trade

The first chapter of the story that the Arab Girl can narrate about her city can be set in medieval Islam; more precisely, from the origins of the Islamic contract, with the revelation of God’s Word to the Prophet, to the end of the pre-modern era and the radical change in the coordinates of the ‘aqd (hence, of its map: section 3.2) that occurred with the transplantation of Western legal culture to Muslim countries (see section 4.3 in this chapter).

To depict this age of the Islamic contract, three elements are noteworthy in terms of the contextualisation of its practice in-time: the ‘foundation’ of the city in a context which was originally non-Islamic (section 4.2.1); the nature of what we described as ‘verbalism’ (section 3.5.1) in relation both to the religious background of the ‘aqd and the function of documentary evidence in medieval trade (section 4.2.2); and how the practice of this Verbal Trade can be coherently linked to the contract theories of the juristic schools also in rela­tion to the elaboration of legal devices (hiyal) (section 4.2.3). As we will see shortly, the alternative approaches to hiyal by Sunni schools can demonstrate both the impact of verbalism in commercial practice and how legal stratagems were not exclusively the product of trade customs but the consistent expres­sion of specific fiqh textual polities.

4.2.1. Pre-Islamic customs, formalism, and the origins of the ‘aqd

The period prior to the revelation of Islam is commonly described in Muslim belief as an age of ‘ignorance’ (jahiliyya): the ignorance of the Truth, of the (right) Path to salvation (Sarffah), with the human being still lost in a moral desert. The radical transformation from the ethic of tribalism to the mono­theistic revelation of Islam finds a comprehensive depiction in the book by Toshihiko Izutsu on the Ethico-Religious Concepts in the Qur'an (2002, first published in 1966).

Contractual rules that were present in the Arabian Peninsula underwent a corresponding dynamic of re-formulation, within a process which was not at all one of radical rejection but, on the contrary, of re-adaptation of local customs according to the Message of the revelation. Most of these rules were certainly related to customary commercial practices within the context of cul­tural pluralism and polycentricity (Salaymeh, 2016, is explicit on the point)⁷ that was the ‘cradle’ of the birth of Islamic law as well as that of the Islamic contract. As also suggested by Schacht, ‘[o]ne of the most distinctive technical features of Islamic law, the juridical construction of contracts, possibly derived from ancient Near Eastern law and might have come to the Muslims through the medium of commercial practice in Iraq’ (1964, p. 22).

It is in this context that, as we noted in Chapter 3, the original structure of the ‘aqd was unilateral rather than bilateral. This is highlighted by the etymol­ogy of jab (offer): ‘jab, making something wajib, means etymologically not “to offer” but “to make definite, binding, due”, and this reflects a different, unilateral construction of the contract’ (ibidem), as also remarked by Zysow (‘jab... seems to reflect a stage of law in which sales were affected by unilat­eral conveyances’: 1985-86, p. 75). It is interesting to note that both Schacht and Zysow underline how Islamic contractual rules did not emerge in a vac­uum but (moving from certain customary practices that were semantically re­shaped by the revelation of Islam) evolved towards a specific construction of the ‘aqd where its bilateral nature superseded elements of the exchange that, in the pre-Islamic tribal society, had involved ‘formal conveyances effected by symbolic, irrational actions’ (Zysow, 1985-86, p.

Hence, correspondingly to the transformation of the previous tribal moral code to the values of Islamic ethics (Izutsu, 2002), contractual rules under­went a re-formulation, as a result of which those actions which were previously considered sufficient to bind the parties (according to the model of implied­in-fact contracts) were substituted by an express verbal exchange of offer and acceptance. ‘Muslim jurists who required an express offer and acceptance regarded only these acts as sufficiently unambiguous to demarcate the legal character of the transaction in question’ (Zysow, 1985-86, p. 71). Hence, in classical Islamic law (see section 3.5.1), gesture, writing, handshaking, or the delivery of property were no longer considered sufficient for the valid conclu­sion of the contract; rather, it was the verbal exchange of offer and acceptance that was required for the enforceability of the exchange. As noted by Zysow, there was a religious meaning in pre-Islamic formulas whose survival Muslim jurists could not countenance. ‘The jurists who demanded an express offer and acceptance based this requirement on the premise that recognizing the passage of title by delivery alone would amount to condoning the survival of these pre-Islamic practices in a new form. For them, implied-in-fact contracts were not informal at all, but represented the recrudescence of formalism’ (ibi­dem, pp. 71-2). These pre-Islamic formulas, therefore, were soon substituted by the requirement of verbal consent between the parties - which, in fact, can be considered itself a precise manifestation of the new religiosity of Islam, grounded on the centrality of the divine Word, within which human beings are constituted in their ethical existence as ‘by way of word' (Stelzer, 2008, p. 169; see back, Chapter 2).

4.2.2. Verbalism and documentary evidence in Muslim medieval trade

‘Although put forward as a rejection of formalism, the requirement of an express offer and acceptance cannot itself escape entirely the label of formal­istic' (Zysow, 1985-86, p.

At the same time, moving here from the interaction between revelation and tradition to the practice of contractual rules in the reality of medieval trade, the rationale of verbalism may be further investigated in relation to what has been considered a striking paradox in the early economy of the Muslim world; namely, the contrast between the strong reliance on written documents by traders, on the one hand, and the lack of recognition of their value (either as a formality to conclude the contract or as documentary evidence) in classical Islamic law (on this point specifically, see Lydon, 2009).

Schacht (1964, pp. 18-19)⁸ notes that what can be described as the ‘lack of faith in paper' (a formula that he did not use explicitly but was later coined by Lydon, 2009) may appear a contradiction with regard to the Qur’an’s explicit endorsement of the recording of contractual agreements (as in Q.

Orality... was central to Islamic legal systems that hinged upon a reliance on the memory of mortals despite the spread of Arabic literacy and the growing popularity of writing. The underlying principle in Islamic legal theory was the belief that the spoken word was the most “authentic” form of proof (Johansen, 1997, p. 337). Oral testimony and oath taking were superior forms of evidence to written documents that, aside from the pos­sibility of being tampered with or decontextualized, were not necessarily clear representations of the truth or of an author’s intent (Johansen, 1997, p. 361). Both oath taking and witnessing were acts inextricably tied to the first pillar of Islam, the profession of one’s faith in God (shahada).

(Lydon, 2009,pp. 654-655)

In the light of these considerations, the preference for ‘verbality’ also with regard to legal proof (the denial of Islamic law of ‘the validity of documentary evidence... [by] restricting legal proof to the oral evidence of witnesses:’ Schacht, 1964, p. 82) can shed further light on the interaction between reli­gion, legal tradition, and commercial reality in medieval Islam - where, even though documents were written down, ‘calligraphy’ could not supersede the authenticity of oral communication.⁹

In The Calligraphic State (1993), already quoted previously, Brinkley Messick investigates the role of handwritten legal documents produced in the 1970s in the town of Ibb, a provincial capital in Safi‘i Lower Yemen, as an expression of a ‘textual polity’ interlocking authority and transmission of meaning within a specific social order (see endnote 6 in this chapter). The discursive formation that is inherently connected to any literacy production is meant in Messick’s research to highlight ‘the relation of shari‘a text to social practice’ (Messick, 1993, p.

In this conceptual context, in fact, although the textual polity of the ‘aqd has radically changed from the classical fiqh of medieval trade to the process of codification in Muslim countries, and later, in the lex mercatoria of con­temporary global finance, fiqh texts and contractual documents have always defined the specific normative space of Islamic legal practice within a double movement¹⁰ (from the Word to the document and from the world to the text - where the document text ‘mediates both the re-production of the Text and the incorporative ‘translation’ of the world:’ Messick, 1989, p. 35).

The function of written documents as mediation between the Word and the world in the performance of Sari‘ah through ‘verbal trade’ reaffirms, once again, the rationales of the acoustic space of Islamic din, with the moral/legal commitment of the parties becoming ‘material’ through their spoken words (section 2.4.5). Therefore, in medieval trade, even though written documents were commonly accepted as substitutes for oral declarations between absent parties, inter praesentes the verbalisation of the intention was always required as primary ‘evidence’ of the commitment to the contract - which could not, on the contrary, be immediately deduced from written documents. Verbalism, in the end (and far from any contradiction or paradox), was the direct result of a normative universe grounded on an acoustic rationality that could not be confined within the visual boundaries of a written text.

In contrast to this, as we will see by referring to the Codified Norm of mod­ern Muslim states (section 4.3) and the Typewritten Market of Islamic finance (section 4.4), the textual polities of the Islamic contract radically departed from this in successive periods of its history, giving rise to alternative forms of discursive relations. But, before moving to the next stages of evolution of the city of the ‘aqd, another dimension of the production of contractual rules in the practice of medieval trade must be discussed: that of the so-called ‘legal devices’ (hiyal, sing. hila) and their function in the traditions of classical schools, in their scholarly elaboration aimed at translating divine revelation into the human reality of commercial affairs.

4.2.3. legal devices (hiyal): contractual theories-into-practices

Dealing with the reality of the ‘aqd in medieval Islam, one of the most reveal­ing areas of the interplay between filqh textual traditions and real-life commer­cial practices is that of legal devices (hiyal, sing. hila).¹¹

For long time, hiyal have been interpreted in Western scholarship as major evidence of the gap between theory and practice in Islamic law, following the position by Joseph Schacht (see also the Introduction to this book, specifically endnote 13): ‘[t]he legal devices represented a modus vivendi between theory and practice: the maximum that custom could concede, and the minimum (that is to say, formal acknowledgment) that the theory had to demand’ (1964, p. 80). In Schacht’s interpretation, legal devices became the main proof of the history of Islamic law as deeply ‘dominated by the contrast between theory and practice’ (ibidem, p. 199), to the extent that, as ‘Islamic law is conscious of its character as a religious,’ ‘it believes in a continued decadence since the time of the caliphs of Medina... and it takes the corruption of contempo­rary conditions for granted’ (ibidem; italics added). Within Schacht’s ‘theory vs practice’ paradigm, ‘[t]he admission of the validity of legal devices (hiyal) serves to counteract, in practice, the claims of the theory’ (ibidem, p. 200).

The critical revision undertaken in this book regarding the decadence and corruption of the Islamic contract (here associated with the practice of hiyal, as opposed to fiqh ideal theory) was originally ignited by Gerome’s Arab Girl (Figure 0.1) as a visual representation of Orientalism. In particular, the bias towards the Almeh has been reviewed through a dialectic of non-identity (Bhaskar) by ‘listening to’ Muslim fiqh in the normative pluralism (Ahmed) that characterises the acoustic space (McLuhan) of Islam.¹²

With this in mind, the re-consideration of the function of hiyal in Muslim medieval trade finds further coherence, as we will see shortly, when located in the broader context of madhahib contract theories, especially in relation to the prevalence (or not) of the external declaration over the inner motive - what has been described in terms of Safi‘i/Hanafi objectivism in contrast to Maliki/ Hanbali subjectivism (see section 3.4.3).

In the Arabic language the term hila (pl. hiyal) denotes any skilful device, expedient or stratagem employed to overcome a difficulty, either by evading or eluding an inconvenience or by ingeniously managing the problem from which it derives. In other words, a hila is any means that successfully deals with a difficult situation by transforming a problematic occurrence into a fruitful result. As this helpful change may be unlikely to be achieved through ordinary means, a hila can be seen as an extraor­dinary tool that is useful (or somehow necessary) when standard means appear inadequate to fulfil a particular objective.

(Cattelan, 2017, pp. 247-248)

Challenging Schacht’s interpretation, a seminal article by Satoe Horii raised the first radical critique of the theory-vs-practice paradigm, by agreeing ‘with Chehata that the phenomenon of hiyal attests to the lively development of Islamic law rather than to its decadence; and with Wichard that hiyal were an integral part of Islamic law rather than devices to circumvent it’ (Horii, 2002, p. 315).¹³ While fully subscribing to Horii’s position, I have further elabo­rated the point (Cattelan, 2017, pp. 265-270) and showed how the divergent positions of the schools regarding the relevance of the motive, in the light of objectivism/subjectivism, match with their approach towards legal artifices (on the point see also Vogel, 2006, p. 32). In particular, the validity of hiyal depends mainly on the objectivity of interpretation, despite the illegal purpose that they seek to achieve.¹⁴ This position is also supported by Mohammad Hashim Kamali, in linking the issue of hiyal to the different approaches of the schools towards externality and intent:

[s]ome differences of orientation in legal thought among the schools can be ascertained with reference to the manifest form as opposed to the essence of acts and conducts. While some are inclined to pay atten­tion to manifest conformity to the letter of the law, other are inclined to credit the intention behind the act, and seek a closer link between the two. But this is indicative only of a general orientation in the sense that they are not mutually exclusive categories as the proponents of one do not deny validity of the other. The Hanafis and Safi‘is tend to stress the externality of conduct without exploring the intent behind it whereas the Malikis and Hanbalis are inclined toward the latter. A consequence of this difference of attitude can be seen in the approval or otherwise of legal stratagems (al-hiyal al-fiqhiyyah).

(Kamali, 1998, p. 65)

In this regard, the approval or rejection of hiyal by the schools cannot be simply related to a prevalence of the practice over the theory, as proposed by Schacht; the doctrinal background of the different tendencies of the Sunni schools regarding hiyal is much more complex and testifies, rather, to an inter­dependence between theory(-ies) and practice(-s) of Islamic law in medieval commercial reality.

On the side of objectivism, hiyal legitimacy was generally recognised by the Safi‘is, on the grounds that external words prevail over the morality of inner intention. Schacht remarks how, although Safi'i and the first few gen­erations of his school regarded hiyal as reprehensible, they recognised their legal validity. The success of Hanafi hiyal literature (see later) caused several Safi'i authors, from the 4th/10th century onwards, to compose books on legal devices and to distinguish valid hiyal (the great majority) from those considered reprehensible or forbidden (Schacht, 1964, p. 81). Safi'i scholars also criticised the Maliki doctrine of sadd al-dharai‘ (see as follows) because it gave primacy to istihsan (preference) over qiyas (analogy) and thus replaced qiyas- ‘an authentic scholarly endeavour (igtihad) that is guided by indicators found in the texts and which are therefore perceptible to jurists’ (as ‘things must be judged by their appearances’) - with istihsan - a ‘form of reasoning from what is not perceptible’ (Horii, 2002, pp. 343-344) (see also Cattelan, 2017, p. 257).

Together with the Safi'is, the Hanafis considered hiyal valid and developed them into a special branch of law, called makharij - i.e ‘exits,’ a genre that was a genuine part not only of Hanafi practice but also of their theory; as demon­strated by Satoe Horii, ‘the makharij did not represent a genre that belongs exclusively to the sphere of practice rather than doctrine. Rather, they served to attest, from a practical point of view, what the legal doctrine prescribes’ (Horii, 2002, p. 331). The assertion is supported by a list of texts devoted to hiyal by Hanafis: the Kitab al-Makharij f al-Hiyal by al-Saybani; a brief and partial commentary on this text by Muhammad b. Ahmad al-Sarakhsi (originally a part of his Kitab al-Mabsut); the Kitab al-Hiyal wa'l- Makharij by Ahmad b. ‘Amr (or ‘Umar) al-Khassaf; the Jannat al-Ahkam wa-Junnat al-Khuassam by Sa‘id b. ‘Ali al-Samarqandi. This particular status of hiyal in Hanafi literature is also confirmed by Udovitch who quotes al-Saybanfs treatise.

In al-Shaybani’s treatise specifically devoted to legal fictions, we read: “I said: What is your opinion of two men wishing to form a partner­ship with their possessions, one of whom has merchandise worth five thousand dirhams and the other merchandise worth one thousand dir­hams? He said: Partnership in goods is not permissible. I said: What type of legal fiction can they employ which would make partners in the mer­chandise they possess? He said: Let the owner of the merchandise worth five thousand dirhams purchase five-sixths of his colleague’s merchandise with one-sixth of his own. If they do this, they will be partners in accord­ance with their shares in the investment; the one whose merchandise is worth one thousand dirhams becomes a one-sixth owner of the combine investment, and his colleague becomes an owner of five-sixths of it.” (al-Saybani, Kitab al-Makhdrij f al-Hiyal, quoted in Udovitch, 1970b, pp.120-121)

In later Hanafite literature, this particular method of circumvention is incorporated into the very body of the legal codes and is usually presented immediately following the prohibition. So complete was the assimilation of this legal fiction into the body of Hanafite law that in several codes it is given without the designation of hila and appears as an accepted feature of positive law. What is perhaps even more significant in relation to com­mercial practice is the inclusion of this legal fiction - without being so designated - in the earliest shurut (legal formulary) works.

(ibidem, p. 121)

The prevalence given by the Hanafis to the appearance of the act, irrespective of the real intentions behind it, and the development of the genre of makharij as a recognised field of doctrinal elaboration, stemmed not from a blind for­malism but from a conception of the divine Law as beneficial for the agent; as a consequence, they developed the hiyal in order to provide legal ‘remedies,’ techniques to seek a ‘utility,’ for the practitioners belonging to the madhhab. The literature of makharij was primarily directed to the removal of oppression (zulm), interpreted in the broader sense as referring ‘not only to an injustice exerted against a person, but to any circumstances that cause any inconven­ience in daily affairs’ (Horii, 2002, p. 320); the Sari‘ah itself was interpreted by the Hanafis as a body of ‘exits’ to ‘escape the unlawful in search of the lawful,’ and to cover the principal necessities of human life (Q. 65:2: ‘If anyone shows piety towards Allah, He will appoint for him a way out (makhraj)’). Hence, the hiyal were not intended to ‘escape’ the Law but, on the contrary, to ‘escape the unlawful in search of the Law.’ Of course, not all devices were lawful, but only those that did not cause prejudice to others. Specifically on this point, Saybani, influenced by the Kufan authority Sa‘bi (d. between 103/721 and 110/728),¹⁵ points out that ‘a hila can be employed only to pursue a lawful course, seeking to get rid of what is unlawful’ (quoted in Horii, 2002, p. 323).

There is no harm in hiyal for lawful purposes. Indeed, hiyal are means by which one can escape from the unlawful to the lawful. As for [those hiyal] that belong to this category and the like, there is no harm. Only rejected are those [hiyal] by means of which one seeks to prejudice another’s right, to disguise a falsehood, or to make things doubtful. As for the means [i.e., the lawful hiyal...] that we mentioned, there is no harm in them.

(i'bi'dem, p. 323)

The genre of makhdrij, reflecting a utilitarian conception of law (in the sense of ‘utility’ for the goodness of the community in following San‘ah) remarks how

makhdrij are appropriate solutions in the sense that they are in accord­ance with the spirit of the law, and their primary purpose is to provide remedies for those who seek them. Put differently, the Hanafis, defined the law primarily in terms of utility. Makhdrij, therefore, were noth­ing special for the Hanafis, but something intrinsic to jurisprudence, an integral part of it. What the Hanafis call “makhdrij” include all possi­ble, justifiable means to solve a given problem within the range of doc­trine... in Hanafi legal discussion, it is often difficult to distinguish “makhdrij” from mere applications of certain prescriptions. The Hanafis “prescribed” makhdrij rather than invented special methods to circum­vent legal prescriptions.

(Horii, 2002, p. 322)

As far as the Malikis are concerned, they developed a similar doctrine to that of the makhdrij, albeit from a different point of view; in fact, in accordance with their subjective perspective, they rejected the position that ‘utility’ is the ‘essence of law,’ attaching greater importance to the inner intention rather than the declared will in the qualification of legal acts. Their position differed from that of the Hanbalis, who categorically rejected hiyal as formalistic strata­gems to circumvent legal provisions, in evaluating legal devices through the principle of sadd al-dharaV- i.e. ‘to block ways’ (ways that are likely to result in an evil end).

This principle might be seen as the antithesis of hiyal, ‘in the sense that it prevents unlawful legal acts committed for presumably illegal purposes, not­withstanding their lawful appearance’ (ibidem, p. 343). But the Malikis did not totally reject hiyal, as shown in the fundamental Mudawwana by Sahnun (d. 240/855); some of the Hanafi hiyal are deemed to be invalid, while oth­ers acceptable, under proper revision, according to the principle of sadd al-dhard'i‘. The principle itself ‘did not lead... to solutions qualitatively dif­ferent from those suggested by the Hanafis’ (i'bi'dem, p. 357), in the attempt to balance the utility of the act and the morality of the action, which seems to be a constant of the Maliki school. In fact, both Malikis and Hanbalis con­centrated on the moral background of the action - a tendency which explains their attention to the real intent, the logic of the principle of sadd al-dhara'R, and the refusal of hiyal as formalistic (and consequently unlawful) devices.

The shift from benefit to morality in the evaluation of acts by the Sunni schools does not match the thesis of the historical existence of only ‘one’ Islamic law. On the contrary, the positions of the madhahib in the concep­tualisation of the psychological formation of the contract (as summarised in Diagram 4) show the coexistence of a range of alternative positions. These positions were mainly ‘utilitarian’ in the case of the Hanafis and the Safi‘is, while ‘ethical’ for the Malikis and the Hanbalis - a divergence that further confirms the normative pluralism offiqh tradition.

The meaning of hiyal as core manifestation of the interplay of theories­practices in Islamic medieval trade emerges also from the consideration that ‘[w]ritten documents often formed an essential element of hiyal’ (Schacht, 1964, p. 83).

The more complicated hiyal normally consisted of several transactions between the parties concerned, each of which was perfectly legal in itself, and the combined effect of which produced the desired result. Each transaction was, as a matter of course, recorded and attested in a separate document. Taken in isolation, a document recording a single transaction or an acknowledgement made by one of the parties might be used by the other party to its exclusive advantage and for a purpose contrary to the aim of the whole of the agreement. In order to prevent this happening, the official documents were deposited in the hands of a trustworthy per­son... or intermediary, together with an unofficial covering document which set out the real relationship of the parties to each other and the real purport of their agreement.

(ibidem, p. 83)

The phenomenon of the use of written documents in relation to legal strata­gems cannot be explored appropriately in this book, with reference to a great geographical and diachronic variance that could be interlinked to specific regional application offiqh doctrinal elaboration. Other ‘ages’ of the ‘aqd still need to be narrated by the Arab Girl. Nevertheless, this employment of docu­ments as essential instruments in legal practice suggests that we interpret the nature of Islamic medieval trade as specific textual polities where the role of Muslim jurisprudence (in ratifying hiyal or not) was not marginal, but rather, incisive. In fact, the approval/denial of the legitimacy of legal stratagems sup­ports a theory-practice interplay where fiqh legal texts were contextualised in their own social realities and aimed at the solutions of practical commercial problems. Following Messick’s terminology, in Muslim medieval trade, fiqh itself was ‘a process of locating Sart‘ah in context, and its social anthropology worked in a “calligraphic”, “handwritten” way by inserting the meaning of legal opinions in[to] a textual polity grounded on specific life-situations’ (Cat- telan, 2021, p. 82).¹⁶

Safi'is

Hanafis

Malikis

Hanbalis

objectivism

SUBJECTIVISM

favor for Hiyal

DISFAVOR FOR HIYAL

UTILITARIAN APPROACH

ETHICAL APPROACH

Diagram 4 Approaches by the Sunni schools towards legal devices (hiyal) (author’s elaboration)

In the next sections, we will see how the calligraphic polity of medieval Verbal Trade, located in the acoustic space of Islam, has been substituted dur­ing modern times by the realm of the Codified Norm and its visual geometry (section 4.3; for the distinction visual/acoustic space see section 1.3.3), and later, by the technology (and epistemology) of the Typewritten Market in the contemporary space of global finance (section 4.4). The transformative praxis of the ‘aqd through these different eras will conclude our analysis with some final reflections on the evolution of the ‘design’ of its city, with different physi­cal layouts of the town, old and new, in relation to the historical variations of Muslim societies (section 4.5).

4.3.