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(Columbia University)
Abstract
This is a discussion of the theory of intent in Islamic law. In an extended example,
I focus on the doctrinal views of Zaydi school jurists from Yemen, but I also
indicate that the issues and the analytic distinctions characterize the Sunni schools
as well. As in western law, ascertaining intent is fundamental to applied Islamic
legal analyses in shari'a courts, in matters ranging from contracts to criminal
cases. My discussion here, however, is limited to the doctrinal theory of such
intent-based legal analyses, about which the Muslim jurists, including the Yemeni
jurists of my extended example, hold divergent opinions. Following the Yemeni
jurists in their analyses, I consider the relation of intent and manifest expression,
including words and writings, across the different domains of bilateral and
unilateral acts.
and the individual. Although we are not yet in a position to imagine for
* Research in Yemen was supported by the Social Science Research Council
"The Legal Person in Islamic Law," organized by Bernard Haykel and David
Powers at Cornell University in September, 2000. I especially appreciate the
detailed comments of discussant Ossama Arabi and observations by Aaron Zysow.
I have revised the paper based on instructive comments from members of the
Executive Board of Islamic Law and Society and an outside reader. I want to
express my particular appreciation for the sustained efforts of David Powers, as
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BRINKLEY MESSICK
this individual anything like Michel Foucault's genealogy of the western subject, the conceptions and problems elaborated by the Muslim
jurists concerning processes of intent represent essential materials for
such a project. Islamic law is known for its marked "individualistic"'
character and the specific dimension of the Muslim individual I focus
on here is this legal person, who I refer to as the "shar'i subject."
The most important legal issues raised in the doctrine on intent center
on its role as a foundation of legal authority and on associated problems concerning the aims and means of legal interpretation. Ascertaining intent is fundamental to shari'a court rulings in matters ranging
from contracts to criminal cases.2 What is ultimately at stake in such
1 E.g., Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon
Press, 1964), 4.
2 I demonstrate this in detail in my book in preparation, which concerns
shari'a court cases from mid-twentieth century imamic Yemen. My findings, which
center on lengthy and formal evidential processes, are different from those of
Lawrence Rosen, who has examined the place of intent in contemporary Moroccan
courts. See his Bargaining for Reality (Chicago: University of Chicago Press,
1984), 52-56; idem, "Intentionality and the Concept of the Person," in Criminal
Justice, ed. J. Roland Pennock and John W. Chapman (New York: New York
University Press, 1985), 52-77; idem, The Anthropology of Justice: Law as Culture
in Islamic Society (New York: Cambridge University' Press, 1989), 51-53; and
idem, The Justice of Islam: Comparative Perspectives on Islamic Law and Society
(New York: Oxford University Press, 2000), 76-77, 118, 144-45. Rosen also has
the Attribution of Inner States (Santa Fe: School of American Research Press,
1995), which includes his own chapter, "Have the Arabs Changed Their Mind?
Intentions and Discernment of Cultural Change," 178-200. I endorse Rosen's
overall view of the significance of the study of intent: "In order to understand the
development and application of the concept of intentionality in any legal system it
is indispensable to place this concept in the larger context of the cultural definition
of the person" (Rosen 1985:53). I also endorse his caution about the associated
problem of the comparative study of the individual: "We can see an emphasis on
the individual and mistakenly equate it with the western notion of individualism,
a self that is, whatever its overt manifestations, deeply and truly private" (Rosen
1989:53). Rosen is not concerned with the doctrinal issues behind legal intent,
which are the subject of the present article, and he treats intent in court as a matter
with the approaches of Anglo-American judges who "treat certain forms of outward
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153
What Comes Naturally (Durham and London: Duke University Press, 1989) and
Vincent Crapanzano, Serving the Word: Literalism in America From the Bench to
the Pulpit (New York: The New Press, 2000), 279-303.
4 El2 s.v. Niyya. This article treats intent exclusively in the domain of the
'ibdddt.
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BRINKLEY MESSICK
early and late, that is, the classical and modern Hanafi school of
Islamic legal interpretation, have raised issues surrounding intent. In
his work on tenth to twelfth century Hanafi jurists of Transoxania,
Baber Johansen contrasts two analytic "spheres" of legal exchange, the
connection with early twentieth century amendments to the pathbreaking codification of shari'a-based civil law in the late nineteenth
century Ottoman code known as the Majalla, and, second, in the work
of the Arab world's great mid-twentieth century law code drafter, 'Abd
al-Razzaq al-Sanhiri. In the first article, Arabi addresses the problem
of "freedom of contract," which, he assumes, is not permitted in Islamic
follows:
Mouton, 1964).
7 Oussama Arabi, "Contract Stipulations (Shurut) in Islamic Law: The Ottoman Majalla and Ibn Taymiyya," International Journal of Middle East Studies
30:1 (1998), 29-50; idem, "Intention and Method in Sanhuri's Fiqh: Cause as
Ulterior Motive," Islamic Law and Society 4:2 (1997), 200-23.
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The principal rule in contracts is the consent of the parties (al-aslfi'l'uqud ridci al-muta'dqidin), and the legal effect is what the parties
obliged themselves contractually [to undertake].... Since God does not
command for commerce except mutual consent (tarddi), mutual consent
validates commerce (al-tarddi huwa al-mubih li'l-tijdra)...; thus if the
parties agree together the contract is valid, except if it contains what
God and His Prophet forbid such as trading in wine and similar
[forbidden] objects.
Hanefite (Paris: Editions Sirey, 1969 [1936]), 70, cited in Arabi 1997:201.
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BRINKLEY MESSICK
the school. Although the Zaydis are a Shi'i school, their larger frame of
reference is the four Sunni schools, which typically appear in their
comparative citations. Although the asserting of position persisted well
into the twentieth century, the Zaydi debate was not "modernist;" unlike
either the late Ottoman jurists or Sanhfiri, the Zaydi debate did not
involve an explicit dialogue with ideally perceived western legal models
such as ultimate intent or freedom of contract.
The Zaydi jurists may be divided into the adherents of two positions.
These are illustrated by the controversy concerning the specific type of
intentionality, namely, the mutual consent of the parties, found in
bilateral contracts, a topic I will examine in greater detail below with
reference to the contract of sale. Simply stated, while both sides agree
on the ultimate, contract-creating authority of mutual consent, they
differ about the import of specific contractual expressions by the parties, typically involving such means as spoken words or writings. One
side in the debate is represented by the Zaydi school's authoritative
fifteenth-century law book, The Book of Flowers, by Imam Ahmad b.
Yahya b. al-Murtada, who died in 1436.9 In the twentieth century, the
positions of this early work were developed and extended in what may
be the last of many commentaries upon it (and the first written for print
publication), a four-volume book called The Gilded Crown, by Ahmad
b. Qasim al-'Ansi, who died in 1970.10 The basic position of the side of
the debate associated with al-Murtada and al-'Ansi is that various sorts
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157
Expressions
language used by the parties. The law books give examples of such
expressions. For instance, an early jurist of the Shafi'i school, alNawawi (d. 1277), who is studied in Lower Yemen, writes of the
contract of sale that "its condition is an offer such as 'I sold to you' or
'I made you possessor' and an acceptance such as 'I bought' or 'I
became possessor' or 'I accepted"'.13 In the Shafi'i school such dialogues of past-tense14 statements are necessary for binding contracts
and, as a consequence, the school's commentators analyze numerous
examples of possible locutions.
In the Zaydi school, according to The Book of Flowers, the requisite
binding reciprocal statements of "offer and acceptance" should occur
"with the expression of ownership transfer, according to custom" (bi-
13 Yahya b. Sharaf al-Nawawi, Minhdj al-Tdlibin (n.p.: Dar Ihya' al-Kutub al'Arabiyya, n.d.), 39.
14 I should make explicit my choice in translating these contractual verbs, and
other examples to come, in the past tense. In 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 completion of the legal act is a central analytic
feature. Secondarily, the English notion of a "performative" verb form and present
tense translations may confuse the main legal issue (introduced later in this essay),
namely, whether such expressions are "performative" acts or not.
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lafzi tamllkin hasab al-'urfi).15 Among Zaydi jurists, this key formu-
lation stands for one side in the debate concerning the relative
significance in bilateral contracts of words and intentions.
Although the Imam himself said nothing further on the topic, this
principle, one of his thirteen original ikhtiydrdt issued soon after he
assumed rule over the highlands following the demise of the Ottoman
Empire in 1918, is the first to be taken up in the later commentary
devoted to them by al-Shamhli.17 Following his initial rendering of the
imam's principle as a line of verse, al-Shamahi commences an extended
prose gloss. In this commentary, which I now follow at some length,
al-Shamahi claims that the imamic position is close to those of several
Sunni schools, including Shafi'is such as al-Ghazzali and al-Nawawi;
to that of Malik, the eponym of the Malikis, who is quoted ("bay' [the
sale contract] is contracted with all that the people consider 'sale' to
15 Al-Murtada, Kitdb al-Azhdr, 143.
16 I have slightly different prose versions of this ikhtiydr from several sources,
one published (Rashad Muhammad al-'Alimi, Al-Taqlldiyya wa'l-Haddtha fi alNizam al-Qdnuin al-Yamani [San'a': Dar al-Kalima,1989], 258) and two in
untitled manuscript versions (by 'Abd al-Rahman b. 'Ali al-Haddad, who died in
1922, and by Muhammad b. Yahya b. al-Mutahhar). I also have two versions in
verse, by al-Haddad and by al-Shamahi, Sirdt, 6. I translate the prose version I
obtained from al-Mutahhar which contains the added parenthetical comment, "that
is, in the offer and acceptance." In a post-revolutionary rendering of this ikhtiydr,
specific location of this imamic ikhtiydr within the chapter on "Sale" in the The
Book of Flowers. In his note al-'Ansi also gives a concise gloss, which is nearly an
exact excerpt from al-Shamahi (p. 6).
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be"); and also to that of the Hanafis, including the late nineteenthcentury Ottoman Majalla, the first quasi-modern code, and also the
official law of Ottoman Yemen in the fifty year period up to 1918.18
Al-Shamahi refers in passing to a principle established in the opening,
general "legal principles" section of the Ottoman Majalla.19 Although
he does not quote it, the third of these general principles begins,
"Decisive in contracts is intentions and meanings, not expressions and
forms..."20
Sale and lease first are associated by al-Shamahi with all the types
of "transactions" (mu'amalat) which involve some form of exchange.
He states that, according to the position taken by Imam Yah.ya, in such
"heart."22
created, may be established, al-Shamahi explains, through an examination of the "manifest meaning of the discourse" (zdhir al-khitdb), or
through a "sign" or "indication" (amdra). This determination involves
any available avenue of communication, "any way we can learn of the
18 Al-Majalla, Arabic translation (Istanbul, 1888). See Brinkley Messick, The
jurist Ibn Nujaym. See Linant de Bellefonds, Droit Musulman Compare, 1:125.
mabdnl.... al-Majalla, 11. The translation in Linant de Bellefonds, Droit Musulman Compare, 125, leaves out "meanings" (ma'dan). The preceding text, principle
2, is more general. It is quoted (from al-Mahasini's Sharh) in Arabi, "Intention and
Method in Sanhiri's Fiqh," 211, n.29, as: "Actions [al-umur] are judged by their
aims [maqdsidiha]: this signifies that the ruling regarding an action is a function of
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The significance of specific words such as "sale" is explored as alShamahi turns to the original (asl) sources on the matter, including both
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den transaction types but limits itself to bay' and related forms "is an
Encyclopedia of Islam, s.v. Bai', Schacht (1965:56) gives a similar etymology for
bay' itself, "the clasping. of hands as the indication of the conclusion of an
agreement."
26 Known as the mundbadha, the muldmasa (cf. Schacht, Islamic Law, 147)
and the hasdh, which involved the casting of stones. See also al-Murtada, al-Bahr
al-Zakhkhdr (Cairo: Maba'at al-Sa'ada, 1948), 3:297; al-Shamahi gives tarh alhasa. Al-Shamahi also refers to al-Husayn b. Ahmad al-Sayaghi, Al-Rawd al-
Nadir (Beirut: Dar al-Jil, 1989), 3:244-5, where all three are discussed. See also alShawkani, Sayl al-Jarrdr, 3:126, and notes on the same page.
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namely, consent. In such analyses, a kind of culturally specific foundationalism assumes that a bedrock of human authority and truth exists,
located at a remove from ordinary discourse, inwardly (in the "heart"
or in the "self') in the elemental 'language,' if that is the appropriate
term, of human intention (qasd, niyya).29 The analytic focus here is
upon a key activity of intentionality, namely, the formulation of consent; it is at this level of intention that authoritative 'meaning' (ma'nd,
pl. ma'ani) is created. By contrast, consisting of expressions, forms,
forms and signs. The previously cited Ottoman Majalla formula"Decisive in contracts is intentions and meanings, not expressions and
without use of the word lafz. In a note he says that the imam's position is that of
the "later" Yemeni mujtahids, including al-Jalal (d. 1673), al-Maqbali (d. 1696),
Ibn al-Amir (d. 1769), and Shawkani. On Shawkani, in addition to passages in
Messick, Calligraphic State, and references provided there, see now the important
kani and the Nature of the Islamic State in Yemen," Ph.D. Thesis, Oxford, Faculty
of Oriental Studies, 1997, and the recent work of Ahmad Dallal, "Appropriating
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While, as we shall see, the previously cited dictum from The Book of
Flowers by al-Murtada concerning "expression" and "custom" encourages, even privileges, analyses of contractual language, the opposing
view held by Shawkani and Imam Yah.ya does not give such weight to
this approach, at least in theory. In his commentary work, The Raging
Torrent (which, according to its subtitle, runs rampant through the
"Gardens of Flowers," i.e., The Book of Flowers), Shawkani cites the
As he puts it later in the same chapter: "[w]e have repeated this for you
numerous times ... the sale established in the Book and the Sunna is the
takes it, and does not speak or make a gesture, and they part the
session (al-majlis), this is a shar't sale, due to the transfer of the sale
object from the ownership (milk) of the seller to the ownership of the
buyer. And, likewise, if the buyer says, "I bought this from you for thus
the two Zaydi positions I discuss should be understood as involving these later
"Sunni" jurists, as they are known in Yemen, versus representatives of the school's
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and so," and the seller surrenders it to him, and there issued from him
neither word nor gesture, and they part from the session, this is
sufficient.35
However, this approach does not eliminate the problems that surround
the interpretation of the manifest representations of the foundational,
but internal operations of "mutual consent" and "satisfaction of the
self." It merely includes wider data, namely, parting the session and
silence, in what might be thought of as a general analysis of verbal and
non-verbal contractual performatives. Shawkani concludes by saying
that the specific Book of Flowers-type of linguistic conditions and
Linguistic analysis
35 Ibid., 3:7.
36 Ibid.
problem posed by the words "sale" and "purchase," al-bay' and al-shird'. Both are
in the category of Arabic nouns that have two opposite denotations; in this case
both words can mean "sale" and "purchase." Al-'Ansi notes that a resolution to this
problem at the level of the formal literate language is provided by reference to
ordinary language usage: "in the language (lugha) they [viz., the two words] are
employed for the acts of the buyer and the seller," by contrast, he adds, "custom
(al-'urf) has restricted al-bay' to the act of the seller and al-shird' [and related
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"sale object"). The initial four conditions of the contract concern the
language of the "offer and acceptance."39 The first of these is the
already cited key passage from The Book of Flowers which holds that a
valid sale agreement must occur "with the expression (lafz) of ownership transfer, according to custom." After quoting the phrase, al-'Ansi
gives his sample wordings for such legal performatives: "I sold, I made
possessor, I gave, I paid, I made over, for thus and so." Then he says,
"if he did not say 'for thus and so,' the first expression becomes
invalid, the last a vow, and the three in the middle gifts." He continues:
Likewise, if he [simply] says, "It's yours," this would be an acknowledgment (iqrdr). But if he says, "for thus and so," it becomes a sale, as
opposed to "I made" and "I consented," since these are not accompanied by the expression of ownership transfer (laft al-tamlik) and the
contract is not valid with them, except if they are answers, with the
meaning of "yes," as when he says, "I sold" or "You bought from me"
for thus and so, and the other says to him "I did" or "I consented." Then
the contract is valid.40
41 Variations derived from the shdt root are found in my Ibb town document
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The second and third conditions pertaining to the "offer and acceptance" lead al-'Ansi to further remarks about language and further examples.42 While the second condition concerns the "acceptance" alone,
the third is that the expressions of the "offer and acceptance" must
"mutually correspond" (they must be mutatdbiqin). This third condition
and the fourth, to be discussed below, were the specific targets of
sold these things to you for two thousand' and the other says, 'I
accepted them for two thousand' or 'I accepted the sale' or such." The
example for correspondence in meaning alone is, "If he says, 'I sold
this shop to you for two thousand' and the other says, 'I accepted half
of it for one thousand and I accepted the other half for a thousand'."
Variations are then adduced, one of which is the case of co-owning
sellers of a single property, each of whom sells half of the item, with
the buyer accepting only one of their offers. This is possible, al-'Ansi
explains, "inasmuch as each of them [the sellers] offered to sell half of
it, and even if it was not so worded, but was here [what each] intended
(al-murad)."43 If, on the other hand, each of the two intended to sell the
whole thing, the acceptance regarding half would not be legal, again by
no. 222, which is dated 1920 (in my files). Al-Hasan b. Ahmad al-Jalal, Daw' al-
Nahdr (San'a': Majlis al-Qada' al-A'la, 1985), 3:1117, gives laft al-shit and
another example given by al-'Ansi, that of al-qa.da' in connection with debt (dayn).
Al-'Ansi also gives sulh for debt relations. R. B. Serjeant and Ronald Lewcock,
eds., San'd', An Arabian Islamic City (London: World of Islam Festival Trust,
1983), 593, provide a glossary entry on shd and related forms, all of which have
pre-Islamic, Himyaritic antecedents. Kil may be derived from kayl (same glossary,
582).
usage might represent something like a larger motive for engaging in the
transaction.
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167
the principle of correspondence of "offer and acceptance." If, in conclusion, the "offer and acceptance" correspond "neither in expression nor
in meaning," the sale is not legal.
The fourth language condition set forth in The Book of Flowers and
vowels are added to the verbs in question. Like many other such
illustrations employed by the jurists (usually without vowel-markers),
If the seller says, "I sold"-with a damma ["u"] on the "t"'--and the
buyer, "I bought"-with a damma on the "ta'."
Both verbs, expressing the reciprocal past acts of selling and buying,
are marked with the appropriate damma, the "u" of the first person.
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part of the example, which I will not quote, is two second person verbs
which attribute legal acts to the opposite party.) In addition to these
possibilities, al-'Ansi continues, the authority of linguistic custom also
may be recognized, according to which the condition of "ascription to
the self' still may be achieved:
If there had been afatha ["a"] on the " t"' of the speaker, it would not
be valid, except following the custom in his language, which would not
be prejudicial, as in the language of some of the regions.
this for thus and so,' and the buyer says, 'yes,' it is sufficient."
Following such precarious wording, al-'Ansi does not require any
correcting expressions, and his summary requirement for meeting this
fourth condition is an "expression" (lafz) that is "past-tense, unambiguous (sarih) and ascribed to its speaker."
Repudiations
To provide contrast with their analyses of bilateral contracts, I now will
consider the Zaydi jurists' analyses of the unilateral act. The legal
domain of talaq, or "repudiation" of the wife, is equally reliant on
analyses of possible utterances. But the situation is different from that
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169
word "taldq." The ideal performative models are, "You are repudiated"
(anti tdliq), "I repudiated you" (tallaqtuki), or "Repudiation upon you"
('alayki al-talaq).48 "I repudiated" alone is insufficiently unambiguous.
Lacking the requisite "intention of the expression," the murmurings of
the sleeper are exempted, as is, in a fanciful example, the tongue-tied
individual with a wife named Tariq who replaces the "rd"' in her name
with a "lam" as he calls out to her. In all such special cases intent
retains a separate authority.
A more technical definition of expression that is "unambiguous,"
cited by al-'Ansi from The Book of Flowers, is "that which does not
question, al-Shamahi, Sirdt, 44, states that untutored individuals "do not
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here [that is, in the The Book of Flowers text upon which he is
commenting] is not the kindya of the science of rhetoric ('ilm albaydn)."53 The main point concerning "indirect expression" is that,
unlike "unambiguous" locutions, such expression is not immediately
binding in and of itself, but instead requires that a link be established
52 Al-'Ansi, Tdj, 2:121-2. He states that talaq can occur in "all tongues,"
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171
[occurs]." Al-'Ansi also notes here that the common people (al'awamm) customarily use various expressions containing the word
"forbidden" (haram), and, again, this amounts to a binding "indirect
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60 The bracketed word is from The Book of Flowers, the text upon which al-
'Ansi is commenting. The matn text uses the formulation "inscribed writing"
(kitdba murtasima).
61 The word (sing. lawh) refers to the writing boards used by students.
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173
exception. It is special because it is associated with unilateral expression (by the husband), whereas, by contrast, writing in the contractual
domains based on the "offer and acceptance" is connected with the
complexities of bilateral expression. If the unilateral situation is that of
the singly acting individual's proper, autograph writing, the bilateral
one is that of writing in the space between self and other. As a consequence, whereas writing is classified as a form of "indirect expression"
in repudiation, in the contractual domains writing, together with all
other forms of expression, must be "unambiguous" (sar.h).
Employing the distinction between unilateral and bilateral undertakings al-'Ansi explains that inscribed writing must be
63 Ibid.
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BRINKLEY MESSICK
whereas gestures are not permitted from the unafflicted, writing is.67
The Book of Flowers itself specifically mentions writing in its "Sale"
chapter only after a passage on the unusual situations of the capable
minor and the slave acting as agents in a contract.
Sunni connections
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175
says that one view holds that such a verbal exchange would not
constitute a sale contract for the Zaydis. The basic issue, as al-Jalal
puts it, introducing the key concept, concerns whether the "wordings of
On the bottom half of the same page in my printed edition of alJalal's commentary, his phrase, "report (khabar) concerning what is in
the self (nafs)," is picked up in the supercommentary (hashiya) by the
eighteenth-century jurist Ibn al-Amir. It is Ibn al-Amir who makes the
specific connection with several of the Sunni schools. Concerning the
analytic problem centering on expression in contracts, Ibn al-Amir
states generally that "the jurisprudents differ as to the status of these
forms (siyagh); the Hanafis are of the opinion that they are reports
(akhbdr), [while] the Hanbalis and the Shafi'is hold that they are
performative acts (inshda't), not reports." Ibn al-Amir then turns to a
distinction put forward by the famous Hanbali jurist, Ibn Qayyim alJawziyya, whom he quotes:
to some of the Sunni schools. Since The Book of Flowers and modem
commentator al-'Ansi hold that such manifest legal expressions are
70 Muhammad b. Isma'il al-Amir, Minhat al-Ghaffdr (San'a': Majlis al-Qada'
al-A'la, 1985), 1118. Ibn Qayyim al-Jawziyya also is quoted on this subject on
p. 903.
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necessary and require linguistic analyses, they are close to the Shafi'is
(also an indigenous school in Yemen), who consider such expressions
to be "performative acts." As a consequence, their foundationalism,
their emphasis on anchoring legal analyses in a bedrock of intent, is
less marked. By contrast, al-Shawkani and Imam Yah ya (as elaborated
upon by al-Shamahi), who do not require specific expressions for such
bilateral legal acts and reject linguistic analyses, are close to the
position of the Hanafi school which regards such expressions not as
performatives but as "reports" of intent. In their proximity to the Hanafi
position, these Yemeni jurists can be said to share this Sunni school's
relatively strong foundationalism.71
These opposed analytic categories are relevant as well to the discussion of unilateral acts such as repudiation (taldq). In this legal domain,
the position of al-Murtada in The Book of Flowers and of commentator
al-'Ansi is that certain expressions alone are performative acts, without
a necessary connection to intent, and that specially tailored linguistic
distinctions and analyses are therefore relevant. In this domain of the
unilateral act their position becomes anti-foundational. However, this
position, that "unambiguous expression" in repudiation itself constitutes
a "performative act," is contested by other commentators on The Book
of Flowers, including, as noted earlier, al-Shawkani, who are consistent
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177
is part of the larger interior realm of the "self," the nafs, with the
that of the bdtin. This rule has many implications in Zaydi legal
practice, including the allocation of the litigation roles of plaintiff and
defendant, with the plaintiff being the party whose claim runs against
the apparent situation (al-zdhir).73 Two compound usages have been
mentioned here in passing, the first, zdhir al-khitdb, used by alShamahi, describes a legal approach to the manifest sense of discourse,
and the second, khildf al-zahir, used by Shawkani, refers to something
contrary to the appearance of things, appearance (al-zdhir) being what
is meant to guide the judge in his ruling.
requiring such a link (in some unilateral acts), while the other position
sees them merely as "indications" of intent. Where the first mounts a
full linguistic analysis, the second conducts a wide-ranging analysis of
signs. A comparative observation is that this basic legal orientation to
the outward and manifest, to the zahir, serves to restrain the sort of
"depth" analyses that grew up in "subjective" western legal interpretation. In the Islamic tradition there was no legal psychology; the
classic expert called to court was the physiognomist, the specialist in
reading outward physical signs as indications.
Conclusion
State, 176-7.
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unilateral legal act could, for some, come closer to being directly
manifested in the various forms of expression. Given the assumed gap
between forms of expression and intention, legal analyses amount to
attempts to erect bridges from the accessible to the inaccessible. The
interpretive work of evaluating spoken and written expression, whether
these are understood as "performatives" or "reports," represents such a
bridging effort.
75 Ibid., 342.
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