Hiyal
Hiyal ( Arabic حيل, DMG ḥiyal , singular hīla حيلة, DMG ḥīla ) are certain tricks in Islamic law that are used to circumvent the normative restrictions of Sharia law . The appearance of legality is preserved.
Examples of hiyal
A typical example of such legal twists is the double purchase ( Arabic بيعتان في بيعة baiʿatān fī baiʿa ) to circumvent the Koranic prohibition of interest . In the case of double purchases, two contractual partners conclude two sales contracts for the same item at the same time, each of which contains a different purchase price and a different delivery period . The first contract stipulates that the de facto lender buys the item in question from the de facto borrower immediately at the meeting ( spot purchase ), the second contract stipulates, like a forward transaction , that the borrowerbuysthe item back at a higher price after a specified period (Forward sale). This effectively results in a supplier credit . The interest rate results from the difference between the first and second purchase price, distributed over the time interval between the two transactions. At the same time, with this double purchase, the lender receives the purchased item as partial security . Such shops were also called muchātara or ʿīna in the Middle Ages.
Another example of a hīla is circumventing the so-called schufʿa , the neighbour's right of first refusal, in that the seller of the property first gives the buyer the border strip to the neighboring property, whereby this right of first refusal is lost. A subgroup of the Hiyal are the "oath tricks" ( maʿārīḍ ), ambiguous statements by means of which one can avert harm in a predicament without incurring the sin of a lie.
history
The Hiyal instrument was developed in the Hanafi school of law . One of the first works that was written on this subject was the "Book of the ways out of the right-wing twists" ( Kitāb al-maḫāriǧ fī ʾl-ḥiyal ) by Muhammad asch-Shaibānī (d. 805), the basic inventory of which is based on the school's founder Abū Hanīfa goes back. The “Book of Tricks and Ways out” ( Kitāb al-ḥiyal wa-l-maḫāriǧ ) by the Hanafi scholar al-Chassāf , who was the court lawyer of the Abbasid caliph al-Muhtadi , is much more detailed . Among other things, it deals with the requirements for the application of the hiyal.
Because of their great popularity in legal practice, the Hiyal were also recognized in the Shafiite school of law after a while , although Ash-Shafiī himself had declared this to be haraam . From the 10th century Shafiite authors even wrote their own Hiyal works, of which that of al-Qazwīnī (st. 1048) has been preserved. Although there were still some Shafiite authorities in later times who raised objections to the use of the Hiyal, such as al-Ghazali , Ibn Hajar al-ʿAsqalānī sharply rejected this view in several legal opinions in the 15th century, thereby causing, that the validity of the Hiyal in the Shafiite school was hardly questioned anymore.
In the Maliki school of law, double buying was refused, but other hiyal, such as circumventing neighborhood law, were allowed. The strongest opposition to the Hiyal was found among the Ashāb al-hadīth and the Hanbalites . Al-Buchari devoted an entire book of his collection of hadiths to combating them. Abū Yaʿlā, the Hanbali court cadre of the Abbasid caliph al-Qāʾim wrote his own "book on the invalidation of the Hiyal" ( Kitāb Ibṭāl al-ḥiyal ) in the 11th century . But here, too, a more pragmatic attitude finally prevailed. The Hanbalit Ibn Qaiyim al-Jawzīya differentiated between three types of Hiyal: 1.) those whose nullity there is no doubt; 2.) those that are undoubtedly permitted, such as the confession of unbelief under duress; and 3.) unexplained, dubious Hiyal, which were recognized by Abū Hanīfa alone, but not by the other founders of the law school.
Discussions in the present
Even in modern Islam there are still reservations about the Hiyal. In an anthology compiled by the “Supreme Council for Islamic Affairs” in Cairo in 1971, the Hiyal are rejected “because they serve to achieve an unsarian goal with Sharia means.” Muhammad ʿAbd al-Wahhāb also expressed himself rather restrictively Buhairī , professor of hadith and fiqh at Azhar University , in his book "The Hiyal in Islamic Sharia" ( al-Ḥiyal fī š-šarīʿa al-islāmīya ). In his view, very few hiyals are permitted, namely those that do not involve "fleeing from the rights of God or man." He regards the account of the ruse Joseph used to induce his brothers to bring their brother Benjamin to Egypt as a Quranic model for such permitted hiyals (Sura 12: 58-66). Buhairī also wants to allow the ambiguous statement ( taʿrīḍ ) if it can avert harm to a Muslim.
In the context of the discussion about the actual "purposes of Sharia" ( Maqāṣid aš-šarīʿa ), which has been more intense since the 1980s, some legal scholars have spoken out in favor of a revival of the legal instrument of the Hiyal in order to increase Islamic law in dealing with the challenges of modernity To give flexibility.
literature
- Arabic hiyal works
- Muḥammad Ibn-al-Ḥasan aš-Šaibānī: Kitāb al-maḫāriǧ fi 'l-ḥiyal Ed. J. Schacht. Reprograph. Reprint of the 1930 edition. Hildesheim: Olms 1968.
- Abū Bakr Aḥmad Ibn-ʿAmr Ibn-Muhair al-Ḫaṣṣāf as-Shaibānī: Kitāb al-ḥiyal wa-l-maḫāriǧ . Ed. J. Schacht. Reprograph. Reprint of the Hanover 1923 edition. Hildesheim: Olms 1968.
- Abū Ḥātim Maḥmūd Ibn al-Ḥasan al-Qazwīnī: Kitāb al-ḥiyal fī l-fiqh. Ed. with translation and comments by J. Schacht. Hanover: Orient-Buchhandlung Heinz Lafaire 1924.
- Muḥammad ʿAbd-al-Wahhāb Buḥairī: Al-Ḥiyal fi š-šarīʿa al-islāmīya wa-šarḥ mā warada fī-hā min al-āyāt wa-l-aḥādīṯ as Kašf an-niqāb ʿan-mauqiy wa al-sun-ḥiy wa 'l-kitāb . Cairo: Maṭbaʿat as-Saʿāda 1974.
- Secondary literature
- Joseph Schacht : Art. Ḥiyal in The Encyclopaedia of Islam. New Edition Vol. III, pp. 510b-513a.
- Joseph Schacht: The Arabic Ḥiyal literature. A contribution to the research of Islamic legal practice. In: Der Islam 15 (1926), pp. 211–232.
- Satoe Horii: The legal evasions in Islamic law (ḥiyal): with special reference to the Ǧannat al-aḥkām wa-ǧunnat al-ẖuṣṣām of the Ḥanafīten Saʿīd b. ʿAlī as-Samarqandī (died 12th century). Berlin: Black 2001.
Individual evidence
- ↑ Cf. Mathias Rohe: The Islamic Law. Past and present . 2nd edition Munich 2009. pp. 117f.
- ↑ See Schacht 1926, 218.
- ↑ See Schacht 1926, 225.
- ↑ See shaft in EI² 512b.
- ↑ Cf. Birgit Krawietz: Hierarchy of Legal Sources in Traditional Sunni Islam . Berlin 2002. p. 265.
- ^ So the translation by Tilman Nagel: The Islamic Law. An introduction. Westhofen 2001. p. 82.
- ↑ Cf. Buhairī 344.
- ↑ Cf. Buhairī 337-44.
- ↑ Cf. Buhairī 386-87.
- ↑ Cf. on this the explanations by Tāhā Ǧābir al-ʿAlwānī in the book Maqāṣid aš-šarīʿa published by ʿAbd al-Ǧabbār ar-Rifāʿī . Beirut: Dār al-Fikr al-Muʿāṣir 2002. pp. 95f.