Reconsideration of Legal Devices (Ḥiyal) by Hanafī Jurists and Malikī Scholars

Reconsideration of Legal Devices (Ḥiyal) in Islamic Jurisprudence: The Ḥanafīs and Their
"Exits" (Makhārij)
Author(s): Satoe Horii
Source: Islamic Law and Society, Vol. 9, No. 3 (2002), pp. 312-357
Published by: Brill
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RECONSIDERATION OF LEGAL DEVICES (HIYAL)
IN ISLAMIC JURISPRUDENCE: THE HANAFIS
AND THEIR "EXITS" (MAKHARIJ)*
SATOE HORII
(Tokyo University of Foreign Studies)
Abstract
Hiyal (sg. hila) are "legal devices" or tools used to achieve a certain objective,
lawful or not, through lawful means. Although it is generally agreed that hiyal
are not merely "evasions of the law," their exact nature and place within Islamic
jurisprudence remains an open question. To date, there have been only a few
studies devoted to the subject and these have focused almost exclusively upon
the Hanafis, who developed hiyal into a special branch of the law, called makharij,
i.e. "exits". I shall examine here the doctrine of the Hanafis together with that of
the Maliki/Medinese jurists, who were early witnesses for and against hiyal as
conceived by the Hanafis. On the basis of their understanding of law in terms of
utility, the Hanafis employed makharij to provide remedies for those who sought
them. As a particular transmission of Hanafi doctrine, the genre of makharij
sought to confirm the standard doctrine by discovering "exits" suggested therein.
The Hanafi concern for the subject was shared by the Malikis, albeit from a
different point of view. The Malikis discussed hiyal as jurisprudential materials
that convey the validity of their doctrine as prescribing appropriate solutions.
Thus, I conclude that both the Hanafis and Malikis regarded hiyal as solutions
drawn from the materials of jurisprudence in accordance with the spirit of law as
interpreted by the jurists of their respective schools.
Introduction
Hiyal (sg. hlla) in Islamic jurisprudence are "legal devices" or skills

used to achieve a certain objective, lawful or not, through lawful means.
According to Ibn Qayyim al-Jawziyya (d. 751/1350), hiyal signify the
* This article is based on my Ph.D. thesis that was published inDie gesetzlichen
Umgehungen im islamischen Recht (hiyal) unter besonderer Beriicksichtigung
des Hanafiten Sa'ld b. 'All as-Samarqandi (gest. 12. Jhdt.) (Berlin: Klaus Schwarz
Verlag, 2001). I am very grateful to the Executive Editors of ILS and to the outside
readers for their useful criticisms that enabled me to reconsider some essential
points. I also thank Professor Hilmar Kriger who encouraged me to publish the
article.
? Koninklijke Brill NV, Leiden, 2002 Islamic Law and Society 9, 3

Also available online - www.brill.nl
RECONSIDERATION OF LEGAL DEVICES 313
subtle management of aspects of a legal transaction in a way

they were not intended.1 One uses hiyal when it would oth
impossible to attain one's objective without violating the la
the Sunni schools of law, only the Hanafis are known for their
use of hiyal, which they developed into a special field of jurisp
called "makharij (sg. makhraj)", i.e. "exits" to escape from th
to the lawful.
The few studies that have been devoted to hiyal are concerne
exclusively with Hanafi texts. The exact nature of hiyal and
in Islamic jurisprudence remain open questions. I will attem
address these questions by arguing that hiyal should be r
materials of jurisprudence that were incorporated into doctrin
legal interpretation. The discussion will center on the Hanafis a
discourse with the Malikis or, more correctly, with the Medin
who were early witnesses for and against hiyal as conceiv
Hanafis.
It was Joseph Schacht who made the greatest contributions to our

present knowledge of hiyal. Schacht edited four original texts devoted
to hiyal. Three of them are by Hanafis: K. al-makharijfi al-hiyal by the
jurist, Muhammad b. al-Hasan al-Shaybani (d. 189/805);2 a brief and
partial commentary on this text by another jurist, Shams al-Din
Muh.ammad b. Ahmad al-Sarakhsi (d. 448/1056) (originally a part of
his K. al-mabsut);3 and the K. al-hiyal wa' l-makharij by a third jurist,
Ahmad b. 'Amr (or 'Umar) al-Khassaf4 (on these works, see section
1.1). The fourth, K. al-hiyal fi al-fiqh, was compiled by the Shafi'i
jurist, Mahmud b. al-Hasan al-Qazwini (d. 440/1048-49 or before 460/
1067-68).5 Two Shafi'i works on hiyal written prior to Qazwini, but
not earlier than the fourth/tenth century, are known only by name.6
Schacht also called attention to two Hanbali critiques of hiyal, one by
1 Ibn Qayyim al-Jawziyya, I'lam al-muwaqqi'in, 4 vols. (Cairo: Matba'at al-

Sa'ada, 1374/1955), III, 252-3.
2 Baghdad, Maktabat al-Muthanna, repr. of Leipzig, 1930, n.d. (abbreviated as
Sh).
3 In Sh, 87-136 (abbreviated as S). Shams al-Din Muhammad b. Abi Sahl al-
Sarakhsi, K. al-Mabsut, 30 vols. (Beirut: Dar al-Ma'rifa, 1405/1986), XXX, 209-
215.
4 Hannover, 1923 (abbreviated as Kh).
5 Hannover, 1924 (abbreviated as Q).
6 Joseph Schacht, "Die arabische hijal-Literatur. Ein Beitrag zur Erforschung
der islamischen Rechtspraxis," Der Islam, XV (1926), 224.
314 SATOE HORII
Ibn Taymiyya (d. 728/1328), the other by the above-mention

Qayyim.7
Schacht made several remarks concerning the nature and function
of hiyal. In his "Arabische hijal-Literatur" he understood hiyal as
reflecting social change and practice. Assuming that the Shari'a was a
body of religious obligations that exercised no influence upon social
life, Schacht held that the earliest Muslim jurists already faced a gap
between ideal theory and social practice, and they used legal devices
to fill this gap.8 Based upon this understanding, Schacht characterized
hiyal as "bogus transactions" which, despite their lawful appearance,
were designed to evade inconvenient prescriptions.9 In his Introduction
Schacht wrote, "They functioned as a 'modus vivendi' between theory
and practice: the maximum that custom could concede, and the
minimum ... that theory had to demand."'0 At the same time, he rightly
pointed out that it was common to consult with jurists about hiyal in
order to solve legal problems arising in daily life.1' In a lecture delivered
in Algiers in 1957, he repeated his position with only modest changes.
He said that it was not the jurists themselves, but the "practitioners of
commerce" who first created hiyal. Jurists merely ratified such "products
of practice." Schacht posited that this ratification began during the first/
seventh and second/eighth centuries and was completed in subsequent
centuries. Schacht explained the process of ratification as a reflection
of a change in the social role of jurists: The purely religious zeal that
motivated the first private activists to implement the spirit of Islam in
an unsystematic manner was replaced by the more technical concerns
of specialists. Unlike Roman jurists who gave new functions to ancient
methods, Muslim jurists, Schacht argued, created a commercial law
that was more flexible than the civil law and developed legal devices
to circumvent any rigidities of the law, without modifying the
established system.12
I disagree with Schacht. First, he posited too sharp a distinction
7 Schacht correctly pointed out that Ibn Qayyim's treatise, properly speaking,
is not a "critique". Ibid., 225-6; idem, An Introduction to Islamic Law (Oxford:
Clarendon Press, 1964, repr. 1984), 81.
8 Idem, "hijal-Literatur," 211.
9 Ibid., 323-4, 213. Cf. idem, Introduction, 79-81.
10 Ibid., 80.
" Ibid. See idem, EI2, 511, s.v. Hiyal.
12 Idem, "Notes sur la sociologie du droit musulmane," Revue Africaine, 96
(1952), 323-5, 327.
between legal theory and legal practice. As he himself no

formed part of special fields such as shurut, wuquf, and
they represented "an aspect offiqh" that is deeply related to pr
The fact that hiyal formed a distinct genre of legal literatu
mean that they were designed to deviate from theory in favor o
In this sense, I agree with Chehata that the phenomenon of hiy
to the lively development of Islamic law rather than to its dec
and with Wichard that hiyal were an integral part of Islamic l
than devices designed to circumvent it."5 But neither Che
Wichard has given sufficient attention to the views of non-Ha
and their discussions of hiyal.
Second, it is unlikely that the pious specialists of the firs
century formulated the substantive law in such a rigid man
made it necessary for their immediate successors to invent hiy
as Schacht suggests, with regard to some religious regulations,
the prohibition of unlawful gain (riba).16 His thesis is bas
assumption that the "practitioners of commerce" tried to elim
restraints imposed by an ideal legal system, which was created
specialists who were motivated by purely religious concern
assumption is doubtful, since, in the formative period, man
were engaged in commercial activities.17
Third, even in the Hanafi context, Schacht did not take serio
juristic understanding of hiyal. It was not only by way of
that the Hanafis called these devices "makharij". Indeed, Schach
pointed out that even the Hanafis distinguished between la
and unlawful ones.'8 However, he may have thought that
this distinction only later, since he held that early jurists,
Malik b. Anas (d. 179/795), were satisfied with observing t
of the law rather than its spirit.19 Indeed, the point that hiya
13 Idem, "hijal-Literatur," 213. "...eine Seite des Fiqh, die mit der
verbunden ist".
14 Chafik Chehata, Theorie gene'rale de l'obligation en droit musulman ha-
nefite (Paris: Editions Sirey, 1969), 56.
15 Johannes Christian Wichard, Zwichen Markt und Moschee: Wirtschaftliche
Bediirfnisse und religiose Anforderungen im friihen islamischen Vertragsrecht
(Paderborn, Miinchen, Wien, Zurich; Fernand Sch6ningh, 1995), 87.
16 Schacht, "Sociologie," 324.
17 See Hayyim J. Cohen, "The economic background and the secular occupa-
tions of Muslim jurisprudents and traditionists in the classical period of Islam,"
Journal of Economic and Social History of Orient, 12 (1970), 18-61.
18 Schacht, "hijal-Literatur," 225; idem, Introduction, 81-2.
19 Idem, "Sociologie," 325.
316 SATOE HORII
product of such a formalist position was made by the tradit

(ashab al-hadith) themselves, as reflected in the Sahah of Buk
257/870). It is noteworthy in this regard that in the last half
introductory chapter of his Makharij, left unpublished by Sc
Khassaf argued, in response to the criticism of a contemporary
legal act must be judged according to its appearance, irrespe
the real intentions behind it.21 We do not know whether or not the
position attributed to Khassaf can be traced back to earlier Hanafis or
even to their Iraqi predecessors. The reason why only the Hanafis were
associated with hiyal must be explained in historical terms, as Melchert
has suggested.22 Whether or not the connection between the Hanafis
and hiyal can be explained in legal terms is another question altogether.
Fourth, Schacht did not pay sufficient attention to the commitment
of non-Hanafi jurists to hiyal, since, for him, only the Hanafis were the
real practitioners of hiyal. In this sense, he regarded the Shafi'is as
unsuccessful epigones of the Hanafis.23 As for the Malikis, our present
concern, Schacht's treatment is unsatisfactory. As discussed below, he
posited that hiyal were of Iraqi origin and did not pay sufficient attention
to Medinese jurisprudence. Though he rightly pointed out that the Maliki
doctrine "admits some hiyal and rejects others," he concluded that the
Malikis "seemed to have paid little attention to the subject," since no
single work on the subject is known of them.24 Curiously, he never
examined the principle of sadd al-dhara'i', i.e., the prevention or
avoidance of the evil consequences of legal acts, a concept which
indicates that the Malikis in fact paid great attention to the subject.
On the following pages, I will attempt to make three points. First,
among the Hanafis, the objective of hiyal was to provide remedies for
those who sought them. Hanafi jurists interpreted their materials and
prescribed makhdrij based on the idea that first and foremost the law
must be useful (i.e., they were not formalists). Second, the genre of
makharij was designed as a particular transmission of Hanafi doctrine
as embodied in general sources of jurisprudence, notably the works of
Shaybani (d. 189/805), himself an author of makharij. The genre sought
to confirm the standard doctrine by discovering "exits" suggested therein
20 On this, see idem, introduction to Qazwini, 5.

21 Khassaf, K. al-Khassaffi hiyal (Cairo: n.p., 1314/1896), 5-11.
22 Christopher Melchert, The formation of the Sunnl Schools of law (Leiden,
New York, Koln: E.J. Brill, 1997), 3-13, 48-60.
23 Schacht, "hijal-Literatur," 224-5, 231, n. 4, 229-31; idem, Introduction, 81.
24 Ibid.
with regard to specific cases. In this sense, makharij originated

from legal discussions documented in the standard texts. Third
to the Hanafis, the Medinese jurists developed a similar doct
from a different point of view. The Medinese jurists exp
position that utility is not the essence of the law through the
of sadd al-dhara'i'. By attaching greater importance to inne
than to declared will in the qualification of legal acts, they
the religious opposition to the formalist approach to the law th
come to be associated with hiyal in subsequent centuri
position of Medinese jurists was certainly different from
traditonalists who categorically rejected hiyal. The Medin
attempted to prevent the improper usage of legal means, a
Iraqi contemporaries in their discussions of makharij. Alt
Medinese jurists never used the term "hiyal", they discussed th
in the same way as Hanafi masters did, i.e. as jurispruden
that validate appropriate solutions free of evil consequence
1. The Hanafi hiyal-literature
1.1. The Makharij-group and the notion of makharij

As noted, we are indebted Schacht for the edition of thr
devoted to hiyal: K. al-makharijfi al-hiyal by Shaybani, a co
on this text by Sarakhsi, and K. al-hiyal wa'l-makharij by
Shaybani was one of the two main disciples of Abu Hanifa,
of the school to whom no work of this kind is attributed. Acc
Schacht, the first person to write on hiyal was Abu Hanifa's ot
disciple and the second teacher of Shaybani, Abu Yusuf (d
whose work, no longer extant, was transmitted in the Ma
Shaybani.25 As for the Makharij of Khassaf, Schacht made i
this treatise should be considered an independent work rat
mere transmission of Shaybani's Makhdrij.26 Schacht a
pointed out that the Makharij of Khassaf, who was renown
special knowledge in many fields of law as well as for his
the Abbasid Caliph, al-Muhtadi (255-56/869-70), contains n
examples of practical import that were drawn from his ot
notably those on shurut27 In general, however, these thr
25 Idem, "hijal-Literatur", 217.

26 Ibid., 214, 218-9.
27 Ibid., 214.
318 SATOE HORII
treatises, together with some later treatises mentioned by Sc

have much in common and constitute a unity that we may c
"Makharij-group."
As indicated by the title of the treatises, the Hanafis prefer th
"makharij (sg. makhraj)" to hiyal. Neither Shaybani nor Khass
a proper definition of the term. Khassaf does cite a hadlth in whi
Prophet ordered a tax collector ('dmil) of Khaybar to sell his d
a certain price and to use the revenue to purchase dates of higher
(instead of bartering the dates for fewer dates of higher qu
Commenting on this report, Khassaf remarks that the Prophe
to transform something sinful into something lawful (al-khuruj m
ithm ila al-haqq).29 Similarly, Shaybani, in his refutation of M
doctrines, mentions on several occasions people who seek to
from what is forbidden and to enter what is permissible (farr
haram wa-dukhulfi al-halal)" or who "seek the lawful (talab
halal),"30 although he does not use the term "makhraj", which
use elsewhere. It is primarily in Hanafi sources that we find early
of the term. It is possible, however, that the term was commonly
especially in connection with oaths (ayman, sg. yamin), since both
b. Anas (d. 179/795) and Shafi'i (d. 204/820) mention some
that can be used to avoid breaking an oath.31
Schacht assumed that the Hanafi understanding of hiyal ori
in connection with oaths. The Makharij of both Shaybani and
begin with a series of traditions from Kufan authorities prio
Hanifa, which form a basic argument for hiyal in general. Ac
to Schacht, these traditions stem from the lost work of Abu Y
With the sole exception of the above-mentioned hadlth regard
barter of dates, cited by Khassaf, these traditions do not concern p
28 Such as Ibn Nujaym's Ashbah wa'l-naza'ir and Shaykh Nizam's al

al-'Alamglriyya. See ibid., 220-1.
29 Kh 1/20.
30 Muhammad b. al-Hasan al-Shaybani, K. al-Hujja 'ald ahl al-Madina, 4 vols.
(Hayderabad: Matba'at Da'irat al-Ma'arif al-Sharqiyya, 1385/1963), II, 585,586-
7.
31 For example, Sahnun, Abu Sa'id 'Abd al-Salam b. Sa'id al-Tanukhi, al-
Mudawwana al-kubra', 6 vols. (Cairo: Dar al-Sadir, 1323/1905), II, 146, 147, III,
157. Isma'il b. Yahya al-Muzani, Mukhtasar al-Muzanl, in: Shafi'i, K. al-Umm,
VIII (Beirut: Dar al-Ma'rifa, n.d.), 294
32 See Schacht's introduction to Sh in: Das kitab al-mahdrig fil-hijal des
Muhammad ibn al-Hasan as-Saibdni (Beitrdge zur semitischen Philologie und
Linguistik, Heft 8, Leipzig; J. C. Hinrichs'sche Buchhandlung, 1930), 52. Idem,
"hijal-Literatur," 222-3.
"legal" hiyal, but refer only to the use of linguistic devices, as

language (ma'drld al-kaldm) that allow more than one inter
and thus made it possible to avoid breaking an oath. Ac
Schacht, those linguistic manipulations ("Redekniffe")33 that f
way into the field of oaths were connected with the Iraqi
ra'y, i.e. individual reasoning. Although ra'y is an antonym
later usage, here it signifies all kinds of non-textual argum
other jurists regarded as highly casuistic.34 Schacht posited
Abu Hanifa or, more likely, Ibrahim al-Nakha'i (d. ca. 96/717),
Kufan jurist and theologian who plays a central role in th
traditions, caused the notion of hiyal to move from the fie
into other spheres of the law.35 Although the grounds on whic
credits Nakha'i with the origin of hiyal are not persuasive
himself acknowledged,36 it seems likely that the origins of th
can be traced back to legal authorities prior to Abu Hanifa,
of his disciples already had a clear notion of makhdrij, an
time, the principle of sadd al-dhara'i' was also known as a d
ing feature of Medinese jurisprudence. But the problem o
requires further examination and is beyond the scope of th
inquiry. We begin from the fact, as Schacht rightly observ
Hanafis admitted that Abu Hanifa was the founder of the g
though he did not compose a treatise on the subject.37 Ce
find in the standard Hanafi texts many statements about hiyal
to Abu Hanifa.
The notion of makharij as espoused by later Hanafi authors, in-
cluding Khassaf, is identifiable in the Kufan traditions, where it has
two characteristic features. The first is removal of oppression (zulm).
This derives from the golden formula regarding the interpretation of
oaths, which is ascribed to, among others, Ibrahim al-Nakha'i: "When
a man who is oppressed by others (mazlum) is required to swear, his
oath [is interpreted] according to what he intended thereby (niyya).
However, when he is in a position to oppress (zdlim), his oath [is
interpreted] according to the intent of the person who made him
swear."38 It is possible that this principle was derived from the exegesis
33 Ibid.
34 Ibid., 221.
35 Ibid., 223-4.
36 Ibid., 224, n. 1. See Kh 66/1, 67/42, 69/1. Sh 5/1, 6/41.
37 Ibid., 221-2.
38 Sh 1/17. Kh 1/8, 63/10. S 1/48. See also Ibn Abi Shayba, K. al-Mussannaffi
al-ahadith wa'l-dthar li'l-hdfiz, 9 vols. (Beirut: Dar al-Fikr, 1409/1989), III, 510.
320 SATOE HORII
of a Prophetic hadith transmitted by Abu Hurayra: "Your oat

terpreted] according to what your partner understands you to say
Shaybani observes that Sufyan al-Thawri (d. 161/778) interpre
this manner.39 The same statement ascribed to Nakha'i is also ascribed
to another Kufan authority, Sha'bi (d. between 103/721 and 110/728),
to whom we will refer below.40
In accordance with this zalim/mazlum-formula, many of these Kufan
traditions permit someone who is compelled to swear against his will
to use equivocal language that allows more than one interpretation in
order not to commit himself to what the oppressor compelled him to
do.41 In the chapters on oaths in two Makharij, we find examples of
different types of "oppressor": The oppressor can be, as the notion of
zulm signifies,42 a powerful figure who will interrogate the person or
extort something from him,43 while a wife can "oppress" her husband
when she forces him to swear, e.g., that all the women or female slaves
whom he marries or buys hereafter will be irrevocably repudiated or
set free;44 this kind of repudiation or manumission, made conditional
upon future acquisition, seems to have been widely practiced. According
to Ibn Qayyim, it became known as "surayjiyya," named after a Shafi'i,
Ibn Surayj (d. 306/918).45 Most importantly, however, the zalimI
mazlum-formula also applies to a procedural oath which the defendant
is required to make by the claimant who has no witnesses for his claim.
Therefore, a malicious claimant who makes a baseless assertion,
knowing that the defendant cannot deny it for one or another reason, is
deemed to be an oppressor,46 and the same is the case with a qddl who,
due to his lacking knowledge of a matter or to his careless management
of process, requires a defendant to swear with an improper wording to
his own disadvantage.47
In Hanafi thought, the "oppression" refers not only to an injustice
exerted against a person, but to any circumstances that cause any
inconvenience in daily affairs. As a basis of this idea, later Hanafis
39 Sh 1/18. Cf. Ibn Abi Shayba, ibid., 509.

40 Kh 1/18. S 1/52.
41 Sh 1/19-37. Kh 1/1-13, 1/17. S 1/10-17, 20-47.
42 Emile Tyan, Histoire de ' Organization Judiciaire en Pays d'lslam, 2nd ed.
(Leiden: Brill, 1960), 435-7.
43 Kh 61/69-72.
44 Sh 11/3-6. Kh 62/1-6, 84/3-7. S 7/1-6a.
45 Ibn Qayyim, I'lam, III, 261-93.
46 Kh 15/12-13, 31/2-4, 52/1-11, 17-21, 53/1-3.
47 Sh 13/24. Kh 44/13, 71/23. S 4/25.
adduced Q 65:2: "If anyone shows piety towards Allah, He will

for him a way out (makhraj)", i.e., a way out of any circumsta
places a constraint upon the people (ma ddqa 'ala al-nas).48 It is cer
in this sense that Shaybani speaks on behalf of people who es
unlawful in search of the lawful, against Medinese jurist
according to him, prohibit them from doing so only by conje
that such an escape can be used as an expedient (dharl'a) to e
(see 2.1). As a result, the Hanafi notion of makharij was conn
with a relaxation of strict interpretation of the law and beca
to that of mitigation or dispensation (rukhsa). Khassaf legitimated
on the basis of certain divine dispensations, e.g. God mitigat
prohibition of proposing marriage to a woman observing her
period by permitting indirect statements that allude to a pro
marriage.49
The first feature of makharij, i.e. "exits" from oppression, t
be associated with their second feature, i.e. deception (khud'a)
(kadhb), since to get rid of the oppressor, the oppressed som
needs to have recourse to a means that the oppressor cannot i
In this sense, makharij fall within the etymological notion of
devices or strategies. In the Makharij-group, this aspect of the
is based upon some hadlths and athar to the effect that in c
necessity, a man may use such strategies to remove obstacles t
otherwise prejudice him.50 These traditions were later supple
by some Qur'anic verses that refer to divine strategies (Q 12:7
4:124).51 Furthermore, according to the Hanafis, it is even recomm
to use strategies instead of coming to terms with the und
situation, inasmuch as the law provides these strategies for th
seek them. They even argued that the Shari'a itself constitute
of "exits" that are designed to cover the principal necessities o
life.52 In other words, what we understand to be the mere applica
a prescription to the relevant case can be called a "device" in a
context. Ibn Hanbal (d. 241/855) rejected this idea, stating that
ordinary solution cannot be deemed to be a "device."53 Ibn Q
48 Ibn Qayyim, I'lam, III, 206-7. The Qur'an, trans. by Richard Bel
(Edinburgh: T.&T. Clark, repr. 1960), II, 568.
49 Khassaf, IHiyal, 8-10.
50 Sh 1/39-44. Kh 1/14-6.
51 Ibn Qayyim, I'lam, III, 201-2.
52 S 1/8. Ibn Qayyim, I'lam, III, 204.
53 Ahmad b. Taymiyya, al-Fatdwa al-kubra, 6 vols. (Beirut: Dar al-K
'Ilmiyya, 1408/1987), VI, 18, 190.
322 SATOE HORII
basically held the same opinion, but his idea of hiyal came clo
Hanafi one in the sense that he understands lawful hiyal
solutions that are in full accord with the purposes of th
frequently suggested that jurists must discover such soluti
examining the materials at hand that their predecessor
appropriately to interpret.54 Though the Hanbalis are beyond
of the present study, note that their discussion on the subject d
further examination.
In sum, for the Hanafis, makharij are appropriate solution
sense that they are in accordance with the spirit of the law,
primary purpose is to provide remedies for those who seek t
differently, the Hanafis defined the law primarily in terms of u
Makharij, therefore, were nothing special for the Hanafis, but so
intrinsic to jurisprudence, an integral part of it. What the Ha
"makharij" include all possible, justifiable means to solv
problem within the range of doctrine. As we shall see later, i
legal discussion, it is often difficult to distinguish "makhar
mere applications of certain prescriptions. The Hanafis "pre
makharij rather than invented special methods to circumve
prescriptions.
But makharij, by definition, set limits upon a utilitarian interpretation
of the law. While makhdrij are regarded as strategies for taking
advantage of what the law provides for, the term emphasises certain
necessities or good reasons to use such strategies, e.g. to defend against
substantial "oppression." Certainly, it was not only by way of euphe-
mism that the Hanafis called hiyal "makharij", but also because the
term "makharij" connotes legitimate actions taken in self-defense. In
other words, what is called a hila or makhraj must ipsofacto be lawful.
In his Makharij, Shaybani, responds to a question regarding an agent
(wakil) who had been entrusted with purchasing or selling an object: is
it reprehensible for the agent to acquire the object for himself by using
hila that Shaybani had mentioned previously. "If this were rep-
54 Cf. Ibn Qayyim, I'lam, III, 375-6 (on the method for a pledgee to acquire the
pledge in default of the payment, cf. Q, IV, 56), 383-4 (on the administration of a
waqfby the founder), 390-1 (how a seller may retain the usus of the object), 396-
7 (on a surety for a future obligation, cf. Sh 16/5-6, Kh 73/36-7), 411-2 (how to
assure that a guarantor assumes only subsidiary liability), 414-5 (on a sale of
cucumbers or eggplants), IV, 5-6 (on a sale of commodities on credit, e.g., meat,
bread, and the like which are delivered daily to customers, who pay on a monthly
basis), 19-21 (on the alternative method for a mugharasa), 33-7 (how a seller may
retain the object in default of payment).
rehensible," Shaybani said, "what I have told you is no hll

one may seek it in a manner that is deemed reprehensible in h
and this is not regarded as a hMla. A h-la can be employe
pursue a lawful course, seeking to get rid of what is unlaw
a hlla."55 In fact, the Hanafis did regard such hiyal as repr
the agent explicitly manifested his intent to breach a trust
the disadvantage of the principal: with regard to the hila fo
who wants to acquire an object that has been entrusted to h
he may, for example, have a trustworthy person purchase
and sell it back to him, although, according to Shaybani, o
as the agent does not stipulate it, and, according to Khassaf, on
agent does not attempt to set the price of the object at a sum
its current market value.56
What criterion, however, may be used to distinguish lawf
makharij from unlawful ones? On this point, Shaybani may
influenced by the above-mentioned Kufan authority, Sha
Khassaf in his Makharij transmits, through Shaybani, a sta
the authority of Sha'bi who, in response to an interrogator
his view on hiyal as follows:
There is no harm in hiyal for lawful purposes. Indeed, hiyal are

which one can escape from the unlawful to the lawful. As f
hiyal] that belong to this category and the like, there is no h
rejected are those [hiyal] by means of which one seeks to
another's right, to disguise a falsehood, or to make things do
for the means [i.e. the lawful hiyal as mentioned above] that we
there is no harm in them."57
Thus, Sha'bi made clear that the lawfulness or unlawful

hlla is determined by whether or not its purpose is to cause pr
another, and that this criterion is derived from the dictum, "e
the unlawful to the lawful," i.e. the very notion of makh
Hanafis invoke this criterion as a general principle58 or as
Shaybani, but not to Sha'bi.59 It is likely, however, that Sh
55 Sh 6/22.
56 Sh 6/9-10, 20. Kh 20/1-4, 14.
57 Kh 1/18. Ibn Qayyim, I'lam, III, 206.
58 S 1/9, 52. Shaykh Nizam, al-Fatawd al-Alamgirlyya, 6 vols. (Bulaq: al-
Matba'a al-Kubra' al-Amiriyya, 2nd ed., 1310/1892-93), VI, 290. Sa'id b. 'Ali as-
Samarqandi, Janna, fol. lb/15-8. See also Schacht, Introduction, 81-2.
59 Badr al-Din Abu Muhammad Mahmfd b. Ahmad al-'Ayni, 'Umdat al-qarl:
Sharh al-Bukhdrl, 20 vols. (Cairo: Sharikat Maktabat wa-Matba'at Mustafa al-
Babi al-Halabi wa-Awladhu, 1392/1972), XIX, 396.
324 SATOE HORII
did articulate the criterion, since the notion is corroborated

opinion ascribed to him. Asked about the inheritance of a w
subsequent to consummation of her marriage, was irrevoca
diated by her husband during his final deathbed illness (marad al
Sha'bi stated that she inherits from her former husband on the co
that he died during her waiting-period. This is because the
presumably repudiated her with the intention of excluding her f
inheritance, i.e., "in order to escape from God's Book (firar
Kitdb Allah)."60 However, Sha'bi's view on this subject, w
followed by later Hanafis, differs from the Medinese doctrin
accords the ex-wife her claim to inheritance whether or not she was
repudiated prior to consummation; indeed, even if she married another
man before her former husband died. Shaybani argued against this
position, stating that it is not appropriate to allow the wife to inherit
from her ex-husband whenever there is no longer any legal relationship
between them.61 It is unlikely that Shaybani based his argument on
purely formal considerations, inasmuch as he cites Sha'bi, who assumed
that the husband who died during the waiting-period of his ex-wife
probably repudiated her irrevocably shortly before his death as a hlla
designed to exclude her from the inheritance. But this case is an
exceptional one in which the Hanafis deemed a lawful act to be unlawful
on the basis of a presumed illegal objective. The Hanafis certainly paid
attention to subjective elements, but they did not consistently attempt
to prevent illegal objectives on the basis of assumptions, as did the
Malikis. Rather, the Hanafis attempted to balance the interests of both
parties and to assess on a case-by-case base whether one person had
prejudiced another through a hila. It was certainly in this sense that
Shaybani opposed the Medinese view that takes into consideration only
the interest of the wife in the above-mentioned case.
How is it possible to balance these interests? On this point, the two
major features of makharij, i.e. the removal of oppression and strategies,
appear to be in conflict: the former tends to safeguard a weak person
against someone who would cause prejudice to his interests, while the
latter tends to legitimate any measure adopted in an effort to avoid
such prejudice. In fact, Shaybani regarded hiyal designed to avoid pre-
emption (shuf'a) and to evade the alms tax (zakdt) as reprehensible
since they are not defensive, but rather cause prejudice to another. Abu
60 Shaybani, Hujja, IV, 85. Cf. Ibn Abi Shayba, Musannaf, III, 413.
61 Shaybani, ibid., 78-83. Cf. Sahnun, Mudawwana, III, 34-40.
Yusuf, on the other hand, seems to have been more toleran

designed to exploit the law to the personal advantage of t
who uses them (see 1.4.). The controversy over hiyal in su
centuries can be explained as a function of two different inter
of makharij, that of Abu Yusuf and that of Shaybani: In the ey
traditionalists, Abu Yusuf's position allowed legally permiss
that led to unethical consequences; it is likely that the tr
critique caused the Hanafis to advance Shaybani's posit
general principle of the school.
1.2. Sa'id b. 'All al-Samarqandi and his "Janna"
Let us now consider the development of makhdrij as a spec

their position, and their meaning in Hanafi jurisprudence. On t
we can turn to a work on hiyal that was not fully examined by
i.e. the "Jannat al-ahkdm wa-junnat al-khussam" of Sa'id
Samarqandi, who died at some point between the end of t
eleventh and the beginning of the sixth/twelfth centuries.62 A
below, this work does not rely on the Makhdrij-group; rather,
extensively upon early sources from which the genre orig
most characteristic feature of the Janna is that it shares o
cases with the Makhrdrij-group. Even with regard to these
Janna often advances solutions or hiyal different from those s
in the Makhdrij-group.63 Neither the Makhdrij of Shaybani, n
Khassaf is mentioned by name. Presumably, this is because
was not directly influenced by the Makhdrij-group. As Sa
himself remarks, the cases were collected from the different
Hanafi doctrine that were available to him.64
62 Brockelmann, Geschichte der arabischen Literatur, Supplementband, II, 272.

On this work, Schacht, "hijal-Literatur," 219.
63 Samarqandi, Janna, fol. 10a22-10b5 (cf. Sh 9/5, Kh 4/11, 79/5), lla/17-
llb/1 (cf. Kh 3/2-6), 24a/11-18 (cf. Sh 2/4, Kh 19/25, 64/4-7, S 2/3), 30a/10-17
(Q IV 41, 43. cf. Kh 19/12-13), 36a/6-15 (cf. Sh 8/40-1, Kh 43/15, 17-18), 37a/
16-19 (cf. V 29, Sh 7/3-4, Kh 42/6,68/3-4, S 4/3), 87b9-17 (Q IV 17; cf. Kh 22/8).
64 Additional evidence supports this assumption. The Kufan traditions that the
Makharij-group invokes as basic arguments for hiyal are omitted in the Janna,
except the zdlim/mazlum-formula on the authority of Ibrahim an-Nakha'i.
Samarqandi, Janna, fol. 90a/19-90b/3 (cf. Sh 1/28. Kh 1/7, 60/9. S 1/41). On the
other hand, the Janna has some traditions from Nakha'i or the three masters that
the Makharij-group does not mention or transmits in different words. Janna., fol.
86b/11-16 (cf. Sh 11/17, Kh 33/5, S 7/15a-b). 71b/2-12 (cf. S 4/34-35a), 13a/17-
326 SATOE HORII
In the introduction, Samarqandi tells us that he collect

containing "exits" (makharij) and "mitigations of the law" (ru
rukhsa) involving both ritual and human affairs from the works
masters and from thefatwas of later ones; and that he organ
cases into chapters, together with supplementary problems th
be useful to his readers.65 This is in fact so: The treatise consists of
citations from standard textbooks and contemporary sources, as re-
flected in the composition of the work. The Janna contains 38 chapters
that cover most topics treated in standard legal texts, and it has
independent chapters on issues that neither Shaybani nor Khassaf
discussed in their Makharij treatises (ritual and criminal law), and on
issues to which they made only occasional reference (inheritance, legal
procedure, and waqf). Each chapter begins by presenting the standard
doctrine on the issue, and then masa'il, followed by relevant fatwas.
Many chapters end with cases introduced by the sentence, "When you
are asked about such-and-such, you should give the following answer";
these cases were meant to serve as a guide for readers who might be
asked to issue fatwas on these topics.66 This style points to the strong
connection between established legal doctrine and legal practice: the
jurists are required to seek a solution that is in conformity with the
doctrine, and the doctrine is inspired by solutions that the jurists
proposed to solve daily legal issues. Hiyal are an integral part of the
interplay between doctrine and practice. Some of these cases, however,
appear to be legal riddles and bear a strong resemblance to those in
Qazwin's treatise. Perhaps, the highly technical, theoretical treatment
of the subjects was, as Schacht pointed out, a feature of later works on
hiyal, notably under the influence of such genres as furuq, i.e. the
comparative study of cases that resemble each other, but are subject to
different legal qualifications.67 However, it is also true that Samarqandi,
13b/9 (cf. Sh 14/7,9, 11, Kh 4/27-8, 64/1-2, S 2/1-2), 92a/1-7(cf. Sh 1/31, Kh 1/9,
S 1/42).
65 Ibid., fol. lb/5-10.
66 Cf. Muhammad Khalid Masud, Brinkley Messick, David S. Powers, "Muf-
tis, fatwas, and Islamic legal interpretation", in Islamic Legal Interpretation: Muftis
and Their Fatwas, ed. Muhammad Khalid Masud, Brinkley Messick, David S.
Powers (Cambridge, MA and London: Harvard University Press, 1996), 4-6. The
Makharij of Khassaf also contains some references to hiyal that a mufti should
suggest to the mustasfi. See Kh 56/6. See also 25/19.
67 Samarqandi, Janna, fol. 2a/14-2b/13 (Q VI 6), 4a/10-21 (Q V 60), 40a/20-
40b/10 (Q V98), 46a/10-48a/6 (Q VI 15-19), 86a/12-16 (Q IV 14), 86b/5-1 1(Q IV
12). Cf. Schacht, "hijal-Literatur", 230-1.
as was typical of jurists, discussed these cases for practical

since the aim offiqh was to cover all cases that might pos
place, however unlikely.
The sources of the Janna include the major sources of ea
doctrine. Of Shaybani's writings, which constitute the bas
Hanafi jurisprudence, the As1,68 al-Jami' al-kablr69 and a
saghir70 are most often mentioned. They belong to the so c
al-riwaya", i.e. the authoritative transmission of Hanafi doctrin
consists of the views ascribed to the three major names of
Abu Hanifa, Abu Yusuf, and Shaybani. In addition, quotat
nawadir-works, which contain cases and views ascribed to t
masters in less authoritative chains of transmission, frequ
in the Janna. It seems that the hierarchical classification of doctrinal
materials was not very rigorous in Samarqandi's time.7 These Nawddir
are quoted at second hand, in most cases through Abu al-'Abbas al-
Natifi (446/1054), an 'Iraqi jurist who seems to have collected them in
his treatise, the Ajns.72 This is perhaps because the Nawadir, mostly
compiled by disciples of the three masters, had already been scattered
and lost. The Janna also mentions technical works, such as instructions
for judges (adab al-qddi), waqf, contract manuals (shurut) and other
treatises that date from the early period of the school.73
Apart from these standard textbooks, two works written by his
countryman, Abu Layth al-Samarqandi (d. 383/993), appear to have
been among Samarqandi's most important sources of information: the
68 Ibid., fol. 1Oa/9, 17a/2, 25b/20, 50b/20, 54a/7, 57b/7, 59a/10, 60b/10, 62a/4,
66b/l, 3, 67a/23, 67b/2, 96b/11.
69 Ibid., fol. 5a/6, 9b/l, 14, 54b/18, 80a/11, 85a/24, 87b/14, 91a/18.
70 Ibid., fol. 25a/17, 54b/13-14, 55b/10, 60a/19, 100b/3.
71 Wael B. Hallaq, "From fatwas to furu': Growth and change in Islamic
substantive Law," Islamic Law and Society, 1:1 (1994), 39-40.
72 Janna, fol. 10a/21-22, 16a/21-22, 27a/21, 60a/7,14, 61a/7, 62a/20,
76a/20, 76b/15, 105a/2, 109a/22-23, 110a/4-5. For Ahmad b. Muhammad b.
'Amr al-Tabari al-Natifi, see Gustav Fliigel,"Die Classen der hanafitischen
Rechtsgelehrten," Abhandlung der Koniglichen Sdchsischen Gesellschaft der
Wissenschaften, 8 (1861), 302. Abu al-Hasanat 'Abd al-Hayy al-Laknawi, K. al-
Fawa'id al-bahiyyafi tardjim al-Hanafiyya (Cairo: Matba'at al-Sa'ada, 1324/1906),
36.
73 E.g. Janna, fol. 60a/19; for al-Hasan al-Ziyad al-Lu'lu'i (d. 204/819)'s Adab
al-qadi, 109b/l, 14; for Ansari (d.215/830)'s Waqf, 109b/16; for Hilal b. Ra'y (d.
245/859)'s Waqf, 109b/6-7; for the shurut of Muhammad b. Muqatil al-Razi, a
pupil of Shaybani, 109b/6-7. For this person, see Fliigel, "Classen," 289 and
Laknawi, Fawa'id, 201.
328 SATOE HORII
'Uyun al-masa'il4 and the Fatdwa.75 The 'Uyun includes one c

on hiyal.76 The Fatdwa includes fatwas issued by jurists who
known to the author of the Janna. In addition to Abu Layth,
referred to most often, other Transoxanian Hanafi jurists appear
Janna. Many of them have a master-and-pupil relationship tha
with Abu Layth's teacher, Abu Ja'far al-Hinduwani (d. 362/9
Bukhara and ends with Abu Sulayman al-Juzajani (d. after 19
one of Shaybani's most important students who, as mentioned
was a major transmitter of the Makharij. From this we may in
both Samarqandi and his master belonged to a tradition of
teaching which, from Shaybani via Juzajani, spread to Trans
and, subsequently, to disciples of Abu Layth.
To sum up, the Janna is certainly a work on makharij, as it clai
be, and it follows the general transmission of Hanafi doctrin
early times down to the period of the author, rather than followi
particular genre transmission, such as that of the Makharij-group
it contains information that allows us to better situate the M
group in the transmission history of Hanafi doctrine. Another im
point is that the Janna shows how the Transoxanian Hanafi
applied the ancient materials to the cases with which they were f
giving them a new function as "exits."
For example, according to standard Hanafi doctrine, a guaran
the appearance of a debtor or his agent (kafil bi' l-nafs) can be exe
from liability only through the delivery of the debtor either to the
himself or to the agent whom he appointed for this purpose o
creditor is dead, to his testamentary executor (wasi) or his heir
Janna cites some fatwas of Transoxianian jurists who sugges
the guarantor can be exempted from liability in the absence o
74 Samarqandi, Janna, fol. 3b/22, 4a/10, 14, 6b/3, 8b/l, 25a/3, 34b/19
49a/21,60b/22, 66a/14, 67a/19, 81b/17,81b/11,90a/22,91b/13,20,97a/
14, 106a/1.
75 Ibid., fol. 2a/11, 3a/l, 8, 6a/5, 23, 6b/2, 5,1 la/2,1 lb/19, 12b/10, 13a/8, 13b/
20, 15b/16, 16b/13, 17b/21, 18a/l, 10, 19b/21, 21a/11, 18, 24a/18, 20, 24b/3, 12,
25a/3, 25b/4,16,36a/15, 40a/20, 41a/22,45a/12,55b/21,59a/20, 64a/13, 66a/14,
67a/19,72a/13,83a/17,19, 83b/9,85a/10, 85b/4,17,90b/3,92b/8,102b/12,104a/
14, 107b/7,112b/10, 113a/13.
76 Abu al-Layth Muhammad b. Ahmad al-Samarqandi, 'Uyun al-masa'il
(Baghdad: Matba'at As'ad, 1386/1967), 442-56.
77 'Abd al-Ghani al-Ghanimi, al-Lubabfi sharh al-Kitab, 4 vols. in 2 (Beirut:
al-Maktaba al-'Ilmiyya, 1413/1993), II, 154. Sarakhsi, Mabsut, XIX, 175-6, 185-
6, XX, 10. Khassaf, Adab, 235-6.
people. According to Nasir b. Yahya al-Balkhi (d. 268/

disciple of Juzajmni, the hlla for the guarantor is that he asks
appoint an agent who will receive the debtor on behalf of t
Abu Nasr Muhammd b. Sallam al-Balkhi (d. 305/917-18)
of Abu Hafs al-Bukhari the Elder (d. 213/832) who also tr
Shaybani's Makharij (see 1.3), agreed with Nasir b. Yah
condition that the creditor disappeared deliberately. Abu L
that this method, although not in conformity with standar
may be practiced at the discretion of the qddi, since it is a
Abu Yusuf in a less authoritative transmission (see above)
way, the jurists attempted to discover any hlla that might
derived from the doctrine. At the same time, as this exam
the resulting hlla can change the doctrine, even a point o
attributed to an ancient master.
1.3. The emergence of Makharij-group as a particular transmission

of Hanafi doctrine
We now turn to the question of how the Makharij-group emerged and

to the significance of the genre. On this point, Samarqandi remarks as
follows, citing Abu Bakr al-Iskaf (d. 333/946), a disciple of the Nawadir-
author, Ibn Salama (d. 278/891-92) and of the above-mentioned
Juzajani, a key figure in the transmission of the makharij-materials.
... Early masters such as Abu Hanifa, Abu Yusuf, Muhammad (i.e.
Shaybani), Zufar, and al-Hasan (b. Ziyad al-Lu'lu'i, d. 204/819) made
known the cases of makharij in their books, without specifying them as
such in their writings. Also, they neither classified nor compiled them.
For this reason, Abu Bakr al-Iskaf said: "All the cases of hiyal are found
in the Mabsut (i.e. the Asl of Shaybani), except one". This refers to the
case of a device used to nullify the pre-emption of co-owners [of property
that has been sold], which we will mention in the right place, if God
wills. Likewise, when someone asked [Abu] Sulayman al-Juzajani: "Why
don't you transmit the K. al-hiyal to us?" he replied: "They are telling a
lie about Muhammad-may God have mercy on him. No K. al-hiyal is
known [to have been composed by] Muhammad, since we transmitted
all the works of Muhammad, except one that he devoted to the ruler
(sultan)." Then he was asked: "Who then wrote the K. al-hiyal?" He
replied: "This is so-and-so, a copyist of Karkh".79
Samarqandi's statement can be interpreted as follows: The early
78 Samarqandi, Janna, fol. 36a/6-15.

79 Ibid., fol. 1a/14-23.
330 SATOE HORII
masters fully discussed the principal problems, but it was on

that the problems were assigned to specific fields such as shurut,
and makharij. The solutions transmitted from the earlier Hanafi s
were regrouped according to the different purposes that th
expected to serve. Iskaf said that the Asl, the central work in the
mission of Hanafi doctrine, was the major source of makhar
was true not only in the sense that the zahir al-riwaya as rep
by the Asl was the most authoritative source of the Hanafis,
because the Makharij of Shaybani was essentially a part of h
Juzajani's statement, which caused the well-known controve
the authorship of Shaybani's Makharij, can be interpreted in this
A variant of this statement is cited by Sarakhsi, who be
commentary on Shaybani's Makharij by reporting this contro
People disagree about whether or not K. al-hiyal was compo
Muhammad [i.e. al-Shaybani]. Abu Sulayman al-Juizajani rejects
attribution], stating: "Do not believe anyone who says that Muh
composed a book called the Hiyal. As for the book that is in circ
it was composed by some Baghdadi copyists (warraqu Bag
The ignorant attribute this [viz., the use of hiyal] to our mast
deprecation. How can we assume that Muhammad would hav
this title to any book he composed, so as to support the assertion
ignorant?" As for Abu Hafs [al-Kabir], he used to say that this [
K. al-hiyal] was composed by Muhammad, and he [viz., Abu
transmitted it from the latter. This [view of Abu Hafs] is more
tative.80
Sarakhsi gives credit to Abu Hafs al-Bukhari the Elder (d. 217/832),
a pupil of Shaybani and contemporary of the author of the Sahlh. Abu
Hafs the Elder, also mentioned several times in the Janna, is known
for having transmitted the Makharij of Shaybani. On the other hand, a
treatise on hiyal by Juzajani himself is known, but, according to Schacht,
it might have been a copy of the work of his teacher, Shaybani. Be that
as it may, Schacht remarks that Abu Hafs and Juzajani transmitted two
representative exemplars of the present Makharij.81
Schacht rightly pointed out that Juzajani clearly intended to dissociate
not only his teacher but also the Hanafis in general from the use of
hiyal, a practice attacked by his "ignorant" contemporaries, and, in
this sense, his statement is an important testimony to the fact that already
in the time of Juzajani, the Hanafis were known as partisans of hiyal.82
80 S 1/1.
81 Schacht, introduction to Das kitdb al-maharig, 13.
82 Ibid., 11.
That the disciples of Shaybani were targeted by the attack

Hanafis and their hiyal is also corroborated by the Janna, w
Ibn Sama'a (d. 233/847), who argued against the tradi
according to whom a mufti, drawing upon Abu Hanifa's wo
(!), advised a wife to apostatize in order to get out of her m
Juzajani did not deny Shaybani's authorship, as Sarakhsi stat
according Schacht, Juzajani affirmed that the title of the w
fact K. al-makhdrij (not K. al-hiyal), and that this book wa
the Asl which he himself transmitted from his teacher.84 This inter-
pretation is supported by Iskaf's statement.
It should now be clear that the genre of makharij, which embodies
solutions selected from the general transmission of Hanafi doctrine
such as zahir al-riwaya, was an authentic part of Hanafi jurisprudence.
Samarqandi suggests that the aim of the makharij-genre was to transmit
and classify the solutions from a special point of view, whether or not
they were originally intended to be makharij. Certainly, it was for
practical reasons that the makharij and other special fields emerged.
However, 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.
1.4. Hiyal in Hanafi jurisprudence
According to the Janna, the contents of the Makharij-genre must

be attested by the Asl and the other principal sources of Hanafi juris-
prudence. I will now compare both Makharij (that of Shaybani and
that of Khassaf) with the basic Hanafi texts in order to show that both
treatises transmit Hanafi doctrine; and that both selected those solutions
found in basic texts that might serve as makharij. The same solutions,
however, are treated differently in the basic texts than they are in the
Makharij-texts. In general, the basic texts refer to rulings on a case-by-
case basis, without describing the relevant facts that enable us to infer
the underlying reasoning. In both Makharij, and especially in that of
Khassaf, on the other hand, the rulings are brought into connection
83 Samarqandi, Janna, fol. 76a/9-20. On thisfatwd and the ascription to Abu

Hanifa, see al-Khatib al-Baghdadi, Ta'rikh Baghdad, 15 vols. (Beirut: Dar al-
Kutub al-'Ilmiyya, 198?-86), XIII, 426-8. Ibn Taymiyya, Fatdwa, VI, 84. Ibn
Qayyim, I'lam, III, 188-9.
84 Schacht, op.cit., 11-12, 19.
332 SATOE HORII
with the actual situation that makes them useful as "exits". A

standard texts, I will refer to the Asl, the IkhtildfAb .Hanifa wa
Layla, and both Jdmi's, the Saghlr and the Kabir.
The first and simplest example, which compares guaranty
(daman) with transfer of debt (hawala), shows that an ex
instruction regarding the former is called an "exit" because it eli
the inconvenience that can arise from the disagreement of Iraqi
over whether the two institutions should be treated in the same m
Transfer of debt is a contract between a debtor and a third pa
a transferee (muhtdl 'alayhi) who, with the consent of the
assumes liability for an obligation. Henceforth the creditor can l
only against the transferee, and the original debtor is exemp
the debt. As for guaranty for debt, the views of the Iraqi ju
divided on this point. The three Hanafi masters, who distinguish
the two institutions, hold that the creditor can lay claim against
the debtor or the guarantor, whereas Ibn Abi Layla (d. 148/7
assimilates a guarantor of debt to a transferee, holds that, in pr
the creditor can lay claim only against the guarantor, unless the
contract contains a stipulation specifying that both the debto
guarantor stand guarantee for each other. In other words, th
assured only if such a stipulation is inserted into the contract. Th
transmits the disagreement of the four scholars as follows:
If one man owes another a debt, and a third party provides a su

the debtor, Abu Hanifa used to tell the claimant (al-talib) that
direct a claim against whichever of them he wishes, and that, in
of a transfer of debt (hawala), he may not direct a claim against th
who transferred the debt [i.e. the original debtor], since the credito
exempted him from his debt [by consenting to the transfer of de
is our view. However, Ibn Abi Layla used to say: "In both c
guaranty and transfer of debt], he [viz., the creditor] cannot l
against the original debtor, because when he accepted the suret
him, he exempted him from the debt, unless the guarantor becom
to perform the obligation. In this case, the creditor can take
against the original debtor for the payment." But if the guaranto
original debtor stand guarantee for one another, both [Abu Han
Ibn Abi Layla] hold that the creditor can lay claim against either of
Note that the stipulation to the effect that the guarantor
85 K. ma ikhtalafa flhi Abu Hanifa wa-Ibn Abl Layld 'an Abi Yusuf, i
Umm, VII, 96-163, 118. Cf. Shaybani, Juz' min al-Amall (Hayderabad
al-Da'irat al-Ma'arif al-'Uthmaniyya, 1360/1964), 47.
original debtor stand surety for one another is referred to

case. This example is described in almost the same word
Makharij of Shaybani.86 In his Makhdrij, however, Khassa
terizes the above stipulation as an "exit" for the creditor, since
assures his claim despite the disagreement between Ibn Abi
the three masters.
I asked: What is your opinion in the case of a creditor to whom

assigned a guarantor for the claim?"
He said: According to our three masters, the original debtor

guarantor are jointly liable for it, so the creditor can lay clai
either of the two. However, some jurists hold that the guaranty
to transfer of debt, and that the creditor cannot lay claim ag
original debtor."
I asked: What is the hila [in this case] that enables the credi
claim against whomever he wishes, according to both views?"
He said: This guarantor stands guarantee for the debtor on th

that they stand guarantee for each other and that the credit
claim against whichever of them he likes. When he guar
debt on this condition, the creditor can lay claim against who
wishes."87
It is clear from the context that Khassaf takes into consideration the
practical possibility that the judge will decide the case according to
"some scholars", i.e. Ibn Abi Layla. In this case, the parties can invoke
this stipulation and extricate themselves from the difficult situation.
Be that as it may, Khassaf reaffirms the doctrine without any deviations,
but transmits it in a different formulation and from a specific point of
view. It should be noted also that the stipulation is inserted to assure
the safety of the creditor, despite the differences of opinion on the
subject. For this purpose, this stipulation is accepted also in Medinese
doctrine (see 2.3., second example).
Our second example, from the Saghir, also involves an exceptional
ruling that was characterized as an "exit": Here, a father is allowed to
"redeem" his minor daughter from her husband by exempting the
husband from the unpaid dower. This solution is specified as an exit
for both the father and the husband.
In some cases, dissolution of marriage initiated by a wife in ex-
change for a consideration (khul') consists in the wife's exempting the
86 Sh 8/1. Kh 70/1.
87 Kh 43/19-20.
334 SATOE HORII
husband from her unpaid dower. What happens if the father of

girl and her husband come to an agreement to this effect w
obtaining her consent? For the father who wants to dissolve the
and take back his daughter, to exempt the husband from the
certainly more convenient than to "redeem" her out of his own
However, according to some Hanafis, such an agreement is
void and the marriage is not dissolved unless the daughter co
the agreement, because a father may not dispose of a right
to a minor under his guardianship to the disadvantage of th
Therefore, if she "vindicates" her claim to the dower and deman
the husband (unless the marriage contract stipulated otherw
husband has no recourse against her father, since his exempti
husband from the dower is null and void. How can the mar
dissolved without obliging the husband to pay the dower? Th
admits an exception: if it is stipulated in the agreement that the
can take recourse against the father in the case of "vindicati
father can redeem his daughter by exempting the husband f
he owes the wife.
[If] a man redeems his minor daughter [from her husband] in return for
the dower [that the latter owes her], this is not permitted. But if the father
redeems her for 1000 [dirhams?] on the condition that he will assume
liability [for the vindication], the redemption takes place and the father
owes [the husband] the 1000.88
If the father stipulates in the redemption contract that he will

compensate the husband for the dower which the wife will demand of
him, the marriage is thereby dissolved, even without her consent. The
dissolution of marriage in this manner, however, does not cause her to
lose her claim to the dower from her husband. He still must pay it to
her, except that, as stipulated, he can take recourse against the father.89
Both Makharij specify this ruling as an "exit" for the father and the
husband.
I asked: What is your opinion if a woman has not appointed an agent

who will redeem her from her husband, and the woman's father wants
to redeem her? Is it permitted?
He said: It is not permitted unless the father redeems her from her husband
at his own expense.
88 Shaybani, Al-jami' al-saghir ma'a sharhihi al-Nafi' al-kabir li'l-'Allamat

Shahir Abi al-Hasanat 'Abd al-Hayy al-Laknawi (Beirut: 'Alam al-Kutub, 1406/
1986), 214-5.
89 Kh 26/3-4.
I asked: What if the father redeems his daughter in return for

that her husband owes?
He said: This is not permitted, and the daughter is not divorced, unless
she consents to it when she learns of the arrangement.
I asked: What should be done so that the divorce takes place and the
daughter is irrevocably divorced?
He said: The father or a third person [stipulates that] he will indemnify

[the husband] for any fault that may be discovered (yadmanu ma adraka
min al-darak) with regard to the dower for which he redeemed her.
I asked: If he does that, is the redemption permitted, and does the divorce
take place?
He said: Yes.
I asked: Does the same hold, if the daughter is either a minor or an adult?
I.e., the redemption is not permitted until the father or a third person
assumes liability for the fault [with regard to the dower]?
He said: Yes.90
It is likely that a father will redeem his daughter from her husband
while she was a minor subject to interdiction or an adult who will not
dissolve her marriage. However, he can do so only at his own expense,
if the husband does not agree to the redemption. According to both
Makhdrij, Hanafi doctrine therefore provides an "exit" for both the
father and the husband. The same method is also accepted in Medinese
doctrine (see 2.3., first example).
Our third example refers to a mitigating circumstance that is accepted
in Hanafi doctrine. A controversy among the three masters suggests
that the ruling was indeed intended as an "exit" and was known as
such to other jurists, including Malik (see 2.2, second example) and
later hiyal-critics.
A man who purchases an unmarried female slave must determine
whether or not she is pregnant by abstaining from sexual intercourse
with her until her first menstrual period or, if she does not menstruate,
until one month after she has been delivered to him, a procedure known
as istibrd'. The object of this procedure is to establish that the female
slave is not pregnant by the seller, so that the purchaser can "protect
his seed from getting mixed with that of others".91 Perhaps this is because
the purchaser needs to exercise care against the possibility that the
90 Sh 6/29-33. Kh 67/30-4. Cf. Kh 26/1-2.

91 Sarakhsi, Mabsut, XIII, 145-6.
336 SATOE HORII
seller will claim that he, not the purchaser, is the father of a chi
less than six months after the purchaser takes possession of her,
minimum period of pregnancy is six months. If this is the ca
seller can either acknowledge the child as his or claim it as his
Furthermore, if the purchaser subsequently sells the mother, he
so only at a loss, since her market value decreases through chi
Shaybani also requires the purchaser to observe istibra' in mo
that he mentions in his Asl. But he refers to an important except
Suppose that a man purchases a married female slave, and t

husband, who has not yet consummated the marriage, repudiat
before the purchaser obtains actual possession of her, and the pu
subsequently takes possession of her; the purchaser is required to
mine that she is not pregnant, on the basis of menstruation. If, ho
the husband does not repudiate her until the purchaser takes po
of her from him [sic], and then the husband repudiates her prior
menstruation, there is no harm for the purchaser to have intercou
her before he determines that she is not pregnant, because he
possession of her in a situation that does not obligate him to e
whether or not she is pregnant.93
Shaybani distinguishes between two cases in order to expla

the determination of whether or not the purchaser is required to
istibra' is made at the time of taking possession (qabd rather
the time of the purchase itself, as attributed to Shaybani in
authoritative transmission.94 According to the Asl, if a purchaser
possession of a female slave while she is married to someone e
requirement that the purchaser determine that she is not pregnan
not apply, since the cause of istibra', i.e. the possibility that the p
will exercise his "right hand" regarding her, does not exist at this
in time. It follows that the subsequent dissolution of marriage do
affect the matter.95 And because she was repudiated prio
consummation of marriage, she is not required to observe the
period ('idda).
This rule is mentioned in both Makharij as an exit for the pu
from the inconvenient procedure of istibra', although Sh
describes it in almost the same terms as in his Asl: If someone pu
a married female slave, who is repudiated after the purchase
possession of her, he is exempted from istibra', differently fr
92 Sarakhsi, Mabsut, XIII, 127-8.

93 Shaybani, Asl, V, 240.
94 Cf. Shaykh Nizam, 'Alamghlriyya , VI, 408.
95 Sarakhsi, Mabsut, XIII, 158.
case in which she is repudiated prior to delivery.96 What is

Shaybani refers to a variant of the case in which the purchaser
gives her in marriage to his slave prior to delivery, and t
repudiates her without consummating the marriage. Shay
that, "according to Abu Yusuf," the purchaser in this
exempted from istibra'. Khassaf's Makharij, on the other hand,
the practical utility of these rules:
I asked: A man wishes to purchase a female slave without bein

to establish that she is not pregnant. What is the hlla for it?
He said: The hila for it is that the seller, prior to selling her, gi
marriage to someone, and then sells her to the man who wishes t
her. As a result the purchaser takes possession of her while
husband and her marriage to the purchaser is forbidden. Th
husband] repudiates her without consummating the marriage
result, the purchaser is not required to confirm that she is not
I asked: What happens if the seller refuses to give her in m

someone and then to sell her?
He said: This purchaser purchases her and pays the price, though without
taking possession of her. Then, the purchaser gives her in marriage to his
slave or another, and takes possession of her after the marriage. Thereafter,
the husband repudiates her. The purchaser is not required to observe
istibra'.97
According to Khassaf, the ruling regarding a man who purchases a

married female slave implies that the seller, in agreement with the
purchaser, gives her in marriage to a straw husband prior to the sale,
while the ruling regarding a purchaser who himself gives his female
slave in marriage before the purchaser takes possession of her
is intended as a remedy for the case in which the seller will not cooperate
with the purchaser. Khassaf is careful to add the third method, for fear
that the straw husband will not repudiate the female slave.98 According
to the Janna, these devices were designed by Abu Yusuf for the Caliph,
Harun al-Rashid.99 This is plausible, since these devices apply to a
purchaser who cannot himself marry a female slave; if he can marry
her, this is the simplest device to escape from observing an istibra',
because the marriage establishes his paternity of any child whom she
96 Sh 14/9-10. See also Sh 14/7 and Kh 72/6a.

97 Kh 4/27-8.
98 Kh 4/29. Samarqandi, Janna, fol. 13b/5-9.
338 SATOE HORII
bears thereafter, while an istibra' is required only in the case of a

that cannot be legitimate.?00 Abu Yusuf's contribution is also sugg
in Shaybani's Makharij. As for Shaybani himself, according t
sources, he, unlike Abu Hanifa and Abu Yusuf, found these
reprehensible (makruh), unless the seller himself determines,
the sale, that his female slave is not pregnant.'10 The Janna re
disagreement among later jurists on this issue: Abu Bakr al-Iskaf
that it is not sinful to use such devices, since their object is to pr
forbidden act, while Abu Layth represented the position of S
Samarqandi himself seems to agree with Iskaf, citing Isbijani
1087) who, in his commentary on Tah.awi's Mukhtasar, argu
the seller, like any Muslim, is presumed, on the face of it, to hav
the necessary precaution.102 In this manner, the Hanafis incor
such devices directly into their doctrine of istibra'.
In our fourth example, it is even clearer that makharij are inco
within legal doctrine. According to the doctrine of pre-emption (s
if a person sells real property, any co-owners of that prope
according to the Hanafis, the owners of any adjoining prope
entitled to pre-empt the sale and to acquire the property in qu
the same cost as the purchaser would have paid. Pre-e
seeks to avoid the undesirable effects of co-ownership, such
subdivision of the property and, according to the Hanafis, the ne
consequences of unwelcome newcomers upon a neighbou
However, since the procedure tends to hinder the circulation of p
the jurists attempted to regulate it by means of legal prerequ
which the claim is subject at various stages.'03 Especially for the H
the purchaser needs "exits" to escape from these inconvenienc
All Hanafi hiyal that make it difficult for co-owners or nei
to exercise their right of pre-emption refer to some prerequis
set theoretical limits upon the claim at various stages. The claim a
through the conclusion of a sale regarding the property in questio
only in a latent manner, for it will be extinguished unless the pr
formally expresses, in the presence of witnesses, his intention to
his right. Hanafi doctrine tends to require that the pre-emptor tak
100 Shaykh Nizam, 'Alamghlriyya, VI, 408. Samarqandi, Janna, fol. 1

Cf. Sarakhsi, Mabsut, XIII, 158.
101 Shaykh Nizam, 'Alamghiriyya , VI, 408. Shaybani, Saghir, 147.
102 Samarqandi, Janna, fol. 13b/14-23.
103 Cf. Jean Baz, Essai sur la fraud a la loi en droit musulman (Paris,
51-8.
as soon as possible.104 Shaybani argued against the Medinese

that the pre-emptor retains his right during his absence, howe
because such a delay causes prejudice to a purchaser wh
resell the property, since no one will want to buy it as lo
emption can be exercised.105 Moreover, the pre-emptor is r
waiving his claim if he makes certain commitments to th
discussed in al-Jdmi' al-kabir.
[If] a person purchases a house on the condition that the pre-emptor shall
guarantee the payment [on behalf of the purchaser] or indemnify [the
purchase] for loss resulting from the purchase, or [if] the seller stipulates
that the pre-emptor has an option [to confirm the sale or not], and the
pre-emptor confirms it, all this is equal to a waiver of the right of pre-
emption.106
If the pre-emptor stands surety for the purchaser or consents to the

latter's acquisition of the property through his own commitments, his
acts are regarded as a waiver of his right prior to the accrual of his
claim. The same rulings are referred to as "exits" for the purchaser in
Khassaf's Makhdrij.
I asked: [Suppose that] one man wishes to purchase a house from another,
but he fears that, if he purchases it, the claim of the pre-emptor will become
binding upon him?
He said: ... There is another method. If the owner of this house sells [it] to
the man who wishes to purchase it, on the condition that the pre-emptor
of the house, on behalf of the seller, will indemnify the purchaser for any
fault with regard to the sale, the pre-emptor cannot claim the house by
way of pre-emption. The same is true when the seller states: "I will sell
you [i.e. the purchaser] this house on the condition that so-and-so here
[i.e. the pre-emptor] will give you confirmation of the sale." As a result
the purchaser purchases it on this condition, and then he [the pre-emptor]
ratifies the sale to him. If this person who confirms the sale, namely, the
pre-emptor, does it, the pre-emption lapses, and the pre-emptor cannot
claim his right to the house [by way of pre-emption].
I said: Then, what is your opinion if this purchaser purchases it on the

condition that the pre-emptor will guarantee the payment [of the purchaser]
to the seller?107
Although Khassaf's answer is missing, the Janna and other sources

105 Shaybani, Hujja, II, 80-1.
106 Shaybani, Al-Jdmi' al-kabfr (2nd ed., Beirut: Dar li-Ihya' al-Turath al-'Arabi,
1399/1979), 310.
107 Kh 23/1, 23/23-5.
340 SATOE HORII
clearly state that this last case can also serve as a hlla, as ment
al-Jdmic al-kabir.l08
These and other measures, taken prior to the sale, make up t
category of devices against pre-emption. Abu Yusuf regards
devices as entirely lawful, since the purchaser defends his inte
removing a prejudice. In other words, this category falls wi
scope of the makharij. Perhaps Abu Yusuf meant that a purch
knows the law better than the pre-emptor has good reason
advantage of his knowledge. However, Bukhari and others cr
this device as pure "deception";'09 and Shaybani labeled this c
of device as reprehensible, since the purchaser himself
prejudice to the pre-emptor whose interests are protected b
institution.
The Makhdrij of both Shaybani and Khassaf refer to a second

category of devices that come into play after the sale, at the moment
when the pre-emptor can exercise his right.110 With regard to these
devices, later sources suggest that Abu Yusuf agreed with Shaybani,
according to whom they clearly infringe upon a claim that is already
due."' It is likely that Shaybani maintained the distinction partly in
response to critics such as Malik (see 2.2, example one), but his point
of view is, as mentioned, linked to the notion of makharij itself, i.e.
"exits" are legitimated primarily as acts of defence against an "op-
pressor." According to Shaybani, the purchaser himself may not be in
a position to "oppress" the pre-emptor.
The fifth example deals with the problem of how to evade the alms
tax (zakdt), and once again Shaybani's view differs from that of Abu
Yusuf. The point centers on the prerequisite for payment of the alms
tax, namely, holding of taxable articles, upon each of which the
minimum amount (nisab) is fixed, for one year. If retention of the taxable
article is interrupted by transferring it before the tax year expires, or if
108 Samarqandi,Janna, fol. 19a/16-19. Abu Layth, 'Uyun, 2261. Shaykh Nizam,
'Alamglriyya, VI, 408.
109 Abu 'Abd Allah Muhammad b. Isma'il al-Bukhari, Sahih al-Bukhari, 9 vols.
in 3 (Matabi' al-Sha'b, 1378/1972), IX, 36-7. See Kh 23/6 and Shaykh Nizam,
'Alamgiriyya, VI, 422. For critical comments on other examples, see Ibn Qayyim,
I'lam, III, 187, 310.
O10 Kh 24/1-14, 23/27, 83/7-8. Sh 24/7-8. Shaykh Nizam, 'Alamgiriyya, VI,
423. Samarqandi, Janna, fol. 19b/8-10, 15-17. 'Uyun, 2261.
II S 6/16b-16e. Kh 23/4,46/1-4. Samarqandi, Janna, 20a/3-4. Cf. Shaykh
Nizam, 'Alamglriyya, VI, 391.
the value of the article falls below the minimum amount at th

the year, the tax duty does not apply. Shaybani, by way of exp
discusses some examples in which the owner of a tax
intentionally interrupts the retention, by disposing of it on the
the tax year expires. It is clear from the context that Shayb
pupil are fully aware of what they are talking about. The ca
mentioned by Bukhari.112
I asked: What is your opinion? A man owns camels and, feari

must pay the alms tax (sadaqa in the sense of zakdt) for them
camels], he sells them in exchange for some cattle or cows or
one day before [the expiration of the year], seeking thereby t
alms tax?
He said: He is not required to pay alms tax until the tax year (hawl)
expires regarding [cattle, cows or dirhams] that are in his possession.
I asked: Then, [what happens] when he sells his camels for camels before
he is obligated to pay alms the tax for them, seeking to evade the alms
tax?
He said: He is not required to pay the alms tax until the tax year expires
regarding what is retained by him. This is the same as the previous case.l13
These cases, however, are not documented either in Shaybani's

Makhdrij or in that of Khassaf, who refers only to cases of shortfall in
the nisab. According to him, the owner is not required to pay the tax
for silver that falls below the nisab, even if by only one dirham.
I asked: Did you not say in one of the chapters on pre-emption that some
jurists mitigate (rakhkhasa) [the use of] a hila with regard to pre-emption
before the sale takes place?
He said: Exactly. This has the same status as a person who possesses 200
dirhams and, one day before [the expiration of] the tax year, he gives one
of these dirhams as charity to the needy. As a result, when the tax year
expires, he has less than 200 dirhams in his possession. Thus, he is not
required to pay the alms tax.
I said: Does this person commit a sin by giving one dirham as charity?
He said: No.
I said: Is this also true of a person who owns 1000 dinars and, one day
before [the expiration of] the tax year, he donates them to a minor son of
his?
112 Bukhari, Sahih, IX, 29-30.

13 Shaybani, Asl, II, 13.
342 SATOE HORII
He said: They already belong to his son. Therefore, the father

charged for the alms tax.
I said: Is this also true of a person who has great wealth, and h
minor children, and he distributes it among them, giving each
them a specific share of property, and so exhausts it?"
He said: It leaves his ownership and becomes the property of his ch

and none of them is required to pay the alms tax.
I said: Does this person not commit a sin by doing so?

He said: He is not sinful, if God wills.'14
The Asl also mentions methods to evade the tax payment af

expiration of the tax year by making a false declaratio
collectors.15 According to Abu Yusuf, both categories are perm
while Shaybani regards evasion subsequent to the expiration of
year as reprehensible, since the payment is already due16-al
the Asl manifests no trace of ethical concern. Khassaf also seems to
share the view of "one of the jurists", i.e. Abu Yusuf.
Later jurists, perhaps influenced by the traditionalist critique, treated
such hiyal in terms of the formalist position ascribed to Abu Hanifa,
who held that the disposal of property on the day before the expiration
of the tax year is valid even if the intent is to evade the tax.117
However, we must consider the reason why the Hanafis discussed
the tax evasion. It is possible that the background to the discussion of
these hiyal was the early controversy over the very nature of the zakdt:
"alms" or "tax"? According to Ibn Abi Shayba (d. 235/849-50),
generally speaking, the Iraqi jurists tended to allow people to give alms
instead of paying the "alms tax," while the Hijazi jurists understood
the zakdt as a "tax" that must be delivered to the authority.18 But it
cannot be said that the Iraqis disregarded the ethical aspects of the
controversy. Rather, their position can be viewed as a theoretical
objection against state authorities who did not properly spend the tax
revenues; even the Hijazi jurists were distrustful of the state on this
point.119
114 Kh 46/1-4.
115 Shaybani, Asl, II, 6-7, 33-4, 44-5, 58, 79, 103, 153.
116 Shaykh Nizam, 'Alamglriyya, VI, 391.
117 'Ayni, 'Umda, XIX, 398-9. Ibn Hajar al-'Asqalani, Fath al-bari bi-sharh
Sahih al-Bukhdar, 14 vols. (Beirut: Dar al-Ma'rifa, 1411-12/1991), XII, 331-3.
118 Ibn Abi Shayba, Musannaf, III, 7-9, 46-9.
119 See ibid., 46-48, nos. 1-4, 12-13; 49, nos. 4, 6-7.
The examples cited above are only a small part of the w

they draw attention to two points. First, "exits" were incorpor
the body of Hanafi doctrine as specific rulings aimed at p
remedies for those who need them in the cases in questio
makharij-literature explains how these remedies work
situations, examining the materials transmitted in the stan
Second, Hanafi masters were conscious of the problem of w
not a ruling could be legitimated as an "exit," and they w
over the very notion of makharij: Shaybani emphasised th
nature of exits (one may not cause a prejudice to another),
Yusuf emphasised strategies available to those who know
them.
2. Hanafis versus Malikis on hiyal
2.1. Shaybani against the sadd al-dhara'i' and Medinese hiy
At the same time that the early Hanafi masters were developin
in their jurisprudence, Medinese jurists were discussing the sub
a very different point of view: sadd al-dhara'i', i.e. "to bl
that are likely to result in an evil end. This principle can be re
the antithesis of hiyal in the sense that it prevents unlawf
committed for presumably illegal purposes, notwithstanding t
appearance.120 In this sense, the tradi-tionalists understood th
dhara'i' as opposing the "formalists" and they attributed th
to this principle. Thus Bukhari, according to Ibn Hajar (d.
"followed Malik in his sadd al-dhara'i'."12l The princip
essential to later hiyal-critique.122
But a "formalist" position cannot be defined as that of th
of hiyal. Nor can a "formalist" always be understood in the
the traditionalists understood the term. For example, Shafi
sadd al-dhara'i' under the category of "istihsan," which in
his view, any form of reasoning other than qiyas. Shafi'i a
120 E2, s.v. Sadd al-Dhara'i (M. Y. Izzi Dien). Cf. Isabel Fierro, "
Maliki <Sadd al-dara'i'> en al-Kitab al-hawadit wal-bida' de al-Turtu
Qantara: Revista de EstudiosArabes, II (1981), 67-68. Cf. Ibn Qayy
147-171.
121 Ibn Hajar, Fath, XII, 327.
122 Cf. See a long argument for the principle in Ibn Qayyim, I'lam, III, 147-71.
344 SATOE HORII
the exercise of qiyas represents an authentic scholarly endeavor

that is guided by indicators found in the texts and which theref
perceptible to jurists. In other words, things must be judged
appearances. For example, when God ordered people to s
witnesses to attest to a debt (Q 2:282), He did not require th
examine whether the witnesses are in fact of good characte
since they can only summon such persons who appear (zahir
good character. According to Shafi', istihsan is a form of r
from what is not perceptible.123 He argued that this feature of
applies to sadd al-dhard'i', since the latter does not judge th
they appear to be, but rather declares a lawful transaction to be
on the ground of the evil intention that lies behind it, which
way established.l24 Shafi'i thus claimed to be a "formalist" w
matters by their appearances, but meant thereby that he prefer
bases over presumptions.
Shaybani used the same critique against the Medinese in the
of tahlil, i.e. "making [a woman] lawful" to her ex-husband who,
exercised his right of threefold repudiation subsequent to consum
cannot remarry his former wife until she contracts a secon
marriage to another and that marriage is dissolved after cons
(Q 2:230). According to the Medinese, the act of consummati
second marriage must make both partners muhsan or muh
liable to death by stoning; thus, the second husband must be
Muslim.125
Against the Medinese view, Shaybani relates from Abu Han
the second marriage can be consummated by a minor husba
has attained the age of majority and is therefore presumed to be
mature, even if he has not yet been declared an adult. In support
position, Shaybani cites a Prophetic hadith which indicates that a
who has been triply repudiated cannot remarry her ex-husban
second husband "experiences the sweetness of carnal enjoym
her (yadhuq 'asllataha)"; and he also cites two similar traditio
'Ali b. Abi Talib and 'A'isha. These traditions, Shaybanm argue
no textual indicator that the act of intercourse to which reference is
made is such that it would cause the partners to become muhsan or
muhsana.126
123 Shafici, Umm, VII, 299-300.

124 Ibid., 297-8.
125 Shaybani, Hujja, IV, 107-11. Cf. Idem, Saghir, 148; Sahnun, Mudawwana,
II, 291-6; Kh 31/12-14.
126 Shaybani, Hujja, IV, 115-23.
It cannot be said that Shaybani adheres to the letter of the law

substantive considerations. Rather, in his "formalist" arg
questions the Medinese attempt to interpret the law in such
as to make matters difficult for people without any te
Certainly, Abu Hanifa's view can be seen as supporting a hl
as suggested by Khassaf in his Makharij: a woman who
remarry her ex-husband asks a close relative or a trustworthy
purchase a minor slave at her expense, and the purchaser
slave in marriage to her. Then, subsequent to consummat
marriage, the owner of the slave gives him as a gift to the slav
with the result that the marriage is dissolved. According t
the advantage of a minor husband is that he does not unde
matter well and, therefore, will never disclose it to the ex-
to others.127 But the Hanafis accepted this hlla because, in
is only the woman who seeks tahlll. According to the Hana
second husband marries the woman with the intent to make her lawful
to her ex-husband without the knowledge of the former spouses, the
tahlll is valid, on the strength of the opinion ascribed to the Medinese
authority, Salim b. 'Abd Allah b. 'Umar (d. 106/724).128 If, however,
the second husband acts with the knowledge and consent of either the
former spouses or at the explicit request of one of the ex-spouses, Abu
Yusuf and Shaybani held that the woman does not become lawful to
her ex-husband, although they disagreed as to whether or not the second
marriage itself is valid. The Medinese, on the other hand, rejected the
hlla of a second marriage with a minor boy, although Malik
held that the tahlll is valid unless the second husband or the former
husband intended it.129 Moreover, Ibn Qayyim put in the mouth of the
Hanafis a critique of the Maliki doctrine according to which a tahlil
produced by a temporary marriage (mut'a) is valid, unless no stipulation
to this effect is made in the contract-and this despite their position on
sadd al-dhara'i'.130
127 Kh 31/12-14. Shaykh Nizam, 'Alamghlriyya, VI, 407-8. Ibn Qayyim finds
this method permissible, if the third party, the owner of the slave, intended the
tahlll. I'lam, IV, 45-6.
128 Sh 14/1. Kh 85/1. S 4/28.
129 Abu al-Walid Sulayman b. Khalaf al-Baji, K. al-Muntaqd; sharh Muwatta',
7 vols. in 4 (Cairo: Matba'at al-Sa'ada, 1332/1913-14), III, 299. Cf. Ibn Qayyim,
I'lam, IV, 45-6.
130 Ibn Qayyim, I'lam, III, 212. Cf. Baji, Muntaqa, III, 335; Ibn Taymiyya,
Fatdwd, VI, 13.
346 SATOE HORII
Shaybani thus criticized the Medinese doctrine not because

viated from the letter of the law, but rather because it was
conformity with the spirit of the law as he understood it. Th
applies to his argument against sadd al-dhara'i', to which he fr
refers in his refutation of the Medinese jurists. For example
exchange of gold for gold, both items exchanged should be o
weight, in accordance with the prohibition of riba of excess (
fadl); if, however, one of the items weighs less than the oth
little as a mithqal (4.233g), Abu Hanifa allows the owner of th
gold to exchange it for the heavier gold, together with something
value is equal to that of the difference. However, the Medines
treat this exchange as a "way" (dharla) to riba, since one party
exchange, intentionally or not, may obtain a surplus in the
"exchange." Shaybani argued that people did this only in
"escape from the unlawful in search of the lawful," and he cr
Medinese jurists who nullified lawful transactions out of fear tha
might produce illegal ends, without any proof131-a criticism w
repeats several times.132 As for the case in question, Shaybani
meant that the prohibition of the exchange on the ground of
difference in value of the gold would place too great a constra
the affairs of the world.
The reason why the Medinese jurists attempted to "block"
practice is that it might lead to an evasion of 'ina, i.e. a transactio
disguises an interest-bearing loan in the form of a sale. The 'in
original form, consists of two consecutive sales. For example,
1000 dirhams at 10 percent interest for a one year period, the
first sells an object of small value for 1100 dirhams, due in a y
immediately thereafter re-purchases the object for 1000 dirhams
as a result, the debtor obtains the needed capital and pays it ba
interest in the amount of 100 dirhams. This transaction is characterized
as the repurchase of the object for a lower price. Most jurists agree that
this is not permissible, citing traditions from 'A'isha and others.133
Shafi'i, however, treats both sales as valid.134 The Hanafis devised a
131 Shaybani, Hujja, II, 584-5.

132 Ibid., 595, 694-5.
133 Ibid., II, 747-50. Idem, Saghir, 43. Cf. Ibn Abi Shayba, Musannaf, V, 24;
Ibn Taymiyya, Fatdwd, VI, 41-52.
134 Muzani, Mukhtasar, 85. Muwaffaq al-Din Ibn Qudama, al-Mughni li-Ibn
Quddma, 9 vols. (3rd ed., Cairo: Dar al-Manar, 1367/1947), IV, 184.
hila based on the above-mentioned case in which there

difference in the value of two gold items: In a loan of 800
25 percent interest, the creditor sells something for 1000 d
then re-purchases it for 800 dirhams plus a non-monetary obje
The reason why the Hanafis validated the repurchase of
for a lower price is that they see a problem only with the
i.e. the repurchase. They hold that both prices, the higher on c
the lower in cash, offset one another at the time of the second
that the resulting difference is paid for the object that is retu
first seller. Thus, the first seller, by repurchasing the object,
claim to a payment without consideration, which falls within t
notion of riba.136 But if the repurchase does not cause such a p
it is regarded as lawful. According to Shaybani, this appli
opposite case in which the first seller repurchases the objec
for a higher price that falls due at the same period as the
Following Abu Hanifa, Shaybani saw no harm in this case,
the two prices offset one another, the first seller apparent
difference for what he has acquired. According to Medine
however, this does not change the fact that the higher price is
for the lower, so that the transaction constitutes a "way" to ri
Unlike the Hanafis, the Medinese jurists regard the two
single unit because the prices do not in fact offset one another
words, this unusual course of events is indicative of a usurious
transaction. For this reason, Malik judged the following case to
be usurious: Someone sells two slaves for 100 dirhams on credit, and
then repurchases one of them for a lower price in cash. This corresponds
to a Hanafi device that makes it possible for the first seller to pay less
for only a part of an object.138 According to Malik, however, even in
this case, the second sale is not permissible, unless the two prices offset
one another, since this will be the case if the parties really intend a sale
of these slaves.139
On the other hand, Medinese jurists tolerate a transaction in which
135 Kh 3/6.
136 Shaybani, Hujja, II, 746-7. Cf. Abu Bakr b. Mas'ud al-Kasani, al-Badd'i'
al-Sana'i'fi tartib al-shara'i', 7 vols., 2nd ed. (Beirut: Dar al-Kutub al-'Ilmiyya,
1406/1986), V, 199.
137 Shaybani, Hujja, II, 753, 746-7.
138 Kh 3/2-4. Shaykh Nizam, 'Alamghiriyya, VI, 409-10. Cf. Ibn Qayyim, I'lam,
III, 335-6.
139 Sahnun, Mudawwana, IV, 117-8.
348 SATOE HORII
the first seller repurchases the object for a lower price on cre
falls due at the same time period as the first price. According
Hanafis, this is equivalent to the original case of 'ina. This a
contradictory to Shaybani, who criticizes the Medinese juris
prohibit this case rather than the opposite one.140
Shaybani also explicitly accused the Medinese of allowing a
A man who purchases a slave who has been authorized to trad
owner (ma'dhun) can stipulate that he acquires both the slave
objects of commercial value that he has acquired. Accor
Medinese doctrine, the purchaser, whether in good faith or n
set the price of the slave lower than its full value, e.g., he can acq
slave, together with his 1000 dirhams, for 500 dirhams. Shaybani
that in this manner, Medinese doctrine supports a "hlla" that faci
the exchange of 1000 dirhams for 500 dirhams.1'4
Shaybani's argument attests to the acute concern of Iraqi an
dinese jurists for the subject of hiyal, a concern that varied a
to their different interpretations of the wide range of jurispr
materials that they shared. The Medinese jurists did not total
hiyal, but rather evaluated them according to their own pers
which, in some cases, differed from that of the Iraqis. This assum
is corroborated by the Mudawwana, as discussed below.
2.2. Mdliki rejection of Hanafi hiyal
The Hanafi discussion of hiyal is documented in the first com

of Maliki jurisprudence, the Mudawwana of Sahnun (d. 240/85
served as qadi under the Aghlabids.142 It is not surprising tha
hiyal should appear in the Mudawwana, since in order to
Hanafism, Sahnuin had to discuss it.
In the Mudawwana, Sahnun asks his teacher, Ibn al-Qasim
140 Ibid., 753-4.

141 Ibid., 503-8.
142 Note: Calder argued that the final redaction of the Mudawwana to
at about the same time as that of Shaybani's Asl. Both texts, he wrote, "ha
in common and may be judged to represent similar stages in the develo
Islamic juristic thought in Qairawan and in Baghdad as formulated in
Calder also claimed-incorrectly-that certain technical terms that occ
Asl, notably istihsan and qiyas, are never found in the Mudawwana. See
Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Pres
52. Ibn al-Qasim reports that Malik often relaxed the solutions of qiyas b
istihsan. See Sahnun, Mudawwana, IV, 299.
806), about a number of cases similar to those discussed in

Makharij-group. Ibn al-Qasim, himself an important discip
either transmits the latter's opinion or gives his own judg
regarding these cases. Although Sahnun and Ibn al-Qasim
the terms "makharij" or "hiyal," they refer to the underlying
as we will see in the following cases, which fall into two gr
first group, Malik or Ibn al-Qasim rejects outright the cor
Hanafi hiyal as invalid, while in the second group, they accept
the Hanafi hiyal. The rejection of the first group is, in m
influenced by the notion of sadd al-dhara'i', as explicitly st
first example.
Example one: pre-emption. Sahnun asked Ibn al-Qasim whether or
not pre-emption applies in the following case: A house worth 100
dirhams is sold for 1000 dirhams, but, subsequent to the sale, the seller
remits 900 dirhams of the sale price in favor of the purchaser. Ibn al-
Qasim replied that the sale and the remission should be regarded as a
"way (dhari'a)" for the parties to avoid pre-emption.143 In fact, the
Hanafis suggested similar hiyal (i.e., an artificially high sale price) to
induce the pre-emptor to renounce his right to pre-emption.144 The
Malikis rejected such hiyal, perhaps because they differ from the Hanafis
on the essential question of how to balance the interests of the pre-
emptor and the purchaser, as mentioned above. Whereas the Hanafis
maintain that it is necessary to set certain theoretical limits upon this
preferential right in favor of the purchaser, the Malikis understand the
institution as protecting the pre-emptor. In another Hanafi hlla
mentioned by Sahnun: the "purchaser" and the "seller" reciprocally
donate the object and the sale-price (an object that is alienated without
consideration is not subject to pre-emption).145 Ibn al-Qasim related
from Malik that a pre-emptor who regards the donation as dubious can
file a claim against the donor and require that he swear an oath to the
effect that he did not intend to circumvent pre-emption.'46
Example two: istibra' of a female slave. Sahnun refers to a case
mentioned above (see 1.4, third example), asking whether or not istibra'
applies to a married female slave who, after being sold, is repudiated
143 Sahnun, Mudawwana, V, 409.

144 Sh 24/4-5. Kh 83/4-5, 23/10, 14-15. S 6/10-11. Shaykh Nizam, 'Alamglriyya,
VI, 423. Ibn Qayyim, I'lam, III, 310.
145 Sh 24/6. Kh 23/10, 83/6. Shaykh Nizam, 'Alamglriyya, VI, 421. Samar-
qandi, Janna, 19b/7-8. Q, IV33. Ibn Qayyim, I'lam, III, 309.
146 Sahnun, Mudawwana, V, 460, see also 439-40.
350 SATOE HORII
by her husband prior to consummation of the marriage. Acco

Ibn al-Qasim, Malik stated that even in this case, the pur
required to determine whether or not she is pregnant.'47
Example three: evasion of an oath. Sahnun asked Ibn al-Qasi
a man who swears that he will never purchase something an
appoints an agent to purchase it for him. According to the
someone who swears that he will never purchase or sell can em
agent, who, in principle, may conclude the sale on his own behalf
response to Sahnun, Ibn al-Qasim related from Malik that in
such a man is considered to have broken his oath. It is clear that Malik
deviated from established legal doctrine on this point, since even Ibn
al-Qasim expressed surprise at his view on the subject.149 In addition,
Sahnun mentions many methods of evading oaths discussed by the
Hanafis, most of which were rejected either by Malik or Ibn al-Qasim.150
Example four: false oath. Sahnun asked Ibn al-Qasim about the
following case. A debtor (lessee, purchaser, or depositary) who owes
1000 dirhams is brought to court by his creditor, who can produce no
witness testimony. Previously, the current creditor owed 1000 dirhams
to the current debtor, but took advantage of the lack of testimonial
evidence to deny this fact by swearing an oath. May the current debtor
now swear an oath to the effect that he owes nothing to the creditor in
order to recover the 1000 dirhams that he lost on the previous occasion?
Ibn al-Qasim reportedly asked Malik about this case several
times, and Malik always answered in the negative.'5 According to the
Makharij-authors, the current debtor may swear an oath in which he
denies his obligation. But if he swears that he did not borrow or purchase
anything from the claimant, he will have sworn falsely. He needs an
"exit": thus, he swears that he owes nothing to the creditor; rather, he
is someone who was "oppressed" (mazlum) and who may escape from
147 Sahnun, Mudawwana, III, 135. Sh 14/7, 9, 11. Kh 4/27-28, 72/6a. See also
Ibn Qayyim, I'lam, III, 336-40.
148 Sh 18/13, Kh 53/11, 75/13. Shaykh Nizam, Cf. 'Alamgiriyya, VI, 399.
149 Sahnun, Mudawwana, II, 141.
150 See ibid., 131 (Sh 19/1, Kh 56/1, 76/1, S 5/8), 135, 144-5 (Sh 21/3, Kh 59/
5, 78/3), 137 (Sh 17/4, Kh 74/7), 145 (Sh 17/16, Kh 54/1, 74/4), 156-7, 163 (Sh
14/36, Kh 51/1, 72/32. Sh 11/23-4, Kh 59/1-4, 84/20, S 7/13. Also Kh 53/22, 62/
10a), III, 5-11 (Kh 53/21). Cf. Ibn Qayyim, I'lhm, III, 291-2, 305-7, 357, 367-8,
382.
151 Sahnun, Mudawwana, VI, 160. Cf. Kh 82/12. See also Sh 10/7, Kh 15/10-
13, 31/18, 80/8, S 6/5-5a. Ibn Qayyim, I'ldm, IV, 43-4.
lying in this way.152 However, according to the majority of th

following al-Hasan b. Ziyad al-Lu'lu'i, a disciple of Shaybani
of a treatise entitled Adab al-qadi, the qadl should allow a d
denies his obligation to swear that he does not owe anyth
creditor to use this wording in favor of the debtor; Abu Yu
other hand, held that a debtor must deny the cause of the obl
invoked by the creditor, e.g. a sale; that is to say, the debtor m
that he did not purchase or sell the object.'53 Malik agreed
Yusuf on this point, since, otherwise a debtor can always
obligation, using parabolic language (ilghaz).'54
The Hanafis reportedly do not accept the hila in the abo
tioned case of an "oppressed" debtor who owes the creditor
other than the 1000 dirhams, i.e., what the creditor once
even if his current obligation and the dirhams are equ
as discussed in connection with a creditor who usurps
something from his debtor against his will. In that case, t
may engage in legitimate self-help only if the object that he u
borrowed is identical in category (jins), quantity, and qua
object of the debt.'55 Against this position, Shafi'i put fo
lenient view that the object and the claim can offset one
both are equal in value.'56 According to Ibn Qayyim, these
cases fall under the category of hiyal that return evil for evil
self-help; he calls this "the case of capture (zafar)," i.e. one
child belonging to someone who has captured his child with
to kill it.157 As for the case mentioned by Sahnun, Ib
categorizes it as a lawful hila.158
Example five: mitigation of the hadd-punishment for the
asked Ibn al-Qasim whether or not the hadd-punishment
applied in the case of a thief who enters a house, takes an
passes it to an accomplice who is standing outside the hou
Qasim related from Malik that the intruder here is not su
hadd unless he himself brings the object out of the house
152 Sh 23/16-17. Kh 82/12. Cf. Sh 10/7. Kh 31/18, 80/8. S 6/5-5a. K

153 Khassaf, Adab, 136-8.
154 Sahnun, Mudawwana, V, 198.
155 Shaybani, Amali, 2-3. 'Ala al-Din al-Samarqandi, Tuhfa, II
Sarakhsi, Mabsut, IX, 178.
156 Shafi'i, Umm, V, 103-4.
157 Ibn Qayyim, I'ldm, IV, 25, 26-7, 43-4.
158 Ibid., 43-4.
352 SATOE HORII
Ibn al-Qasim reportedly asked Malik several times about vari

this case, e.g., what happens if the intruder throws the object out
house to an accomplice standing outside? After thinking abo
question for a long time, Malik responded by refusing to disc
subject, perhaps for fear that his views would establish "way
thieves might adopt in order to achieve their criminal intenti
immunity.159 In fact, parallel cases are discussed as hiyal by later
such as Qazwini and Samarqandi, although they are not foun
Makharij-group.160
Example six: Is itpermissiblefor the executor of an estate (w
purchase part of the estate that has been entrusted to him? The H
suggest as a hiyal for this problem that the executor sell the prop
question to a third party who will subsequently sell it back to him
solution is similar to that proposed for an agent who wants to pu
an object for himself; cf. 2.1).161 Ibn al-Qasim reports the fo
case: a Bedouin was the executor of the estate of a man who died l
two camels. The Bedouin asked Malik how he might purch
camels for himself, since he was unable to find a buyer for them
low price of approximately three dinars. In principle, Malik w
allow an executor to purchase anything belonging to the est
which he had been entrusted; in this case, however, Malik allo
purchase, although our source does not specify exactly what
the Bedouin to do. Ibn al-Qasim speculates that Malik mi
(rakhkhasa) the rule either because the value of the camels wa
because the Bedouin executor had made a sufficient effort to sell them
before he decided to purchase them for himself. 162 Thus, despite his
preventive attitude, Malik also taught a hila that he conceded was
necessary under the circumstances.
2.3. The Mdliki hiyal
In the Mudawwana, we find another category of hiyal accepted by Malik

or Ibn Qasim. In some cases the solutions to these cases differ from
those suggested in the Hanafi Makharij-group; in other cases the
solutions are identical. As the following examples demonstrate, the
159 Sahnun, Mudawwana, VI, 273.

160 Q. 2:5, 5:24. Samarqandi, Janna, fol. 95b/12-96a/1. Ibn Qayyim, I'lam, III,
257, 316.
161 Sh 6/20-1, Kh 20/3, 14, 67/21-2. See also Ibn Qayyim, I'lam, III, 359-61.
162 Sahnuin, Mudawwana, VI, 20.
Malikis, like the Hanafis, sought for solutions that can be

within the range of their legal doctrine. (The first two exa
already been cited with regard to the Hanafis.)
Example one: khul'. What happens if a father negotiates an ag
with the husband of his minor daughter regarding her redemp
marriage (khul'), and he stipulates that the husband does n
pay her dower (1.4., first example)? Ibn al-Qasim reports that
to Malik, a father may in fact exercise his compulsory pow
minor daughter by negotiating a redemption at her expense, a
the Hanafis, the terms of the agreement do not require her fut
However, if the daughter is not a virgin (thayyib), Malik h
retains her claim to the dower from her ex-husband, who may
recourse against her father. To improve the situation of
husband and to give him recourse against the father, Malik
the father should stipulate that he assumes liability for the
same solution proposed by the Hanafis (2.4, second examp
Example two: a claim against joint guarantors. If a credit
absence of his debtor, pursues one of three guarantors, he
only one-third of his claim from him. Sahnun asked Ibn al-
happens if the creditor makes the three guarantors stipulat
will guarantee their debts to each other. This refers to the hil
in the Makharij-group with regard to a joint obligation b
original debtor and a guarantor: the creditor can collect the en
from any one of them, as he wishes (1.4., second example).
to Ibn al-Qasim, Malik, likewise, suggested that if the three
stipulate that they stand surety for each other, the creditor c
any one of them for the entire claim.164
Example three: mudaraba. A mu.draba (according to the
qirad) is a contractual agreement between an investor and
partner (muddrib) according to which profits of any trans
distributed in a stipulated proportion. Like the Hanafis, Malik
the investment may not be made in the form of goods, b
cash.165 Sahn.un asked Ibn al-Qasim what happens if the in
the working partner form a qiradd, acting in good faith, with i
in spot wheat or barley and earn a profit. According to Ib
who follows the Medinese doctrine on this point, the work
163 Ibid., II, 350.

164Ibid., V, 261.
165 Ibid., V, 86.
354 SATOE HORII
is entitled to an average wage for the sale of wheat or barley

average share of the profits of any subsequent trades on the
defective (fdsid) qirad.166 In other words, the goods are re
having been capitalized through sale, so that this qirad takes
facto with respect to future profits (as Shaybani states in his cri
the Medinese doctrine).167 The Malikis developed a simple hila
the investor entrusts goods to his partner, who sells them an
proceeds of the sale to invest in a qirad.168 According to the
however, this type of qirad can never take effect and is rega
instance of hire. For this reason, the Hanafis resort to a differen
the investor must sell the goods to a third party, from whom th
repurchases them and uses the proceeds for the qirad.169
Example four: sale of unripe grain standing on the earth o
fruits hanging on trees. Such a sale is advantageous to the se
can avoid risks such as damage to the plants or a decline in th
value of the fruit or grain when it becomes ripe. But a sale
type is especially advantageous to a purchaser who acquires t
or fruit at a lower price, speculating on a rise in price. Acco
established legal doctrine, however, such a sale is valid only
condition that the purchaser removes the fruit or grain from th
land.170 The Makhdrij-group propose two alternative hiyal
designed to make it possible for the purchaser to leave the p
place until it is ripe: (1) the seller, subsequent to the conclusi
contract, permits the purchaser to do so171 (this implies that th
gives the purchaser free access to his land for watering an
purposes);172 (2) the purchaser first leases the land and then
the object on it, thereby taking possession of both.173 Sahnun as
al-Qasim about both cases. According to Ibn al-Qasim, Malik
both methods, giving no reason. It is conceivable that Malik
both devices as hiyal that were designed specifically for the b
the purchaser (cf. Ibn al-Hanbal, who denied the very possi
166 Ibid., 87.

167 Shaybani, Hujja, III, 21-2.
168 Abraham L. Udovitch, Partnership and Profit in Medieval Islam
ton: Princeton University Press, 1970), 183.
169 Sh 22/3. Kh 12/3, 81/3. Udovitch, ibid.
170 Abu Yusuf, Ikhtilaf, 20-1. 'Ala al-Din al-Samarqandi, Tuhfa, II, 6
Qudama, Mughnl, IV, 80-7. Muzani, Mukhtasar, 80.
171 Kh 19/17-18. Cf. Sh 4/7-8, Kh 19/36-37, 65/7-8. See also Q IV:24
172 Ibn Qayyim, I'lam, III, 323-4 (see also 262-3).
173 Sh 4/1-3, Kh 19/15, 65/1-3. See also Ibn Qayyim, I'lam, III, 357.
such a sale even if the fruit and grains were removed).l74 The
reasoning is perhaps that the purchaser may cause damage to t
land during his occupation, as suggested by Ibn al-Qasim
alternative solution: that the purchaser purchase the objec
then the land.175 This solution at first sight does not app
advantageous to the purchaser, for it will cost him more than
devices do, although it is possible that he and the seller wi
agreement according to which the latter will re-purchase the l
the purchaser has disposed of his plants.
Example five: stipulations in a marriage contract in fav
wife. Suppose that a husband stipulates in his marriage contrac
will not remove his wife from her home country, that he will
another woman, or that he will not purchase any female s
stipulations are binding according to the Hanbalis but not a
the Malikis or Shafi'is, and they are controversial among t
who attempt to determine on a case-by-case basis whether
a stipulation is in accord with the essential elements of marria
ensure that these terms are fulfilled, the Makhdrij-group p
following hlla: the husband stipulates in the marriage cont
he reneges on a promise made to his wife, he will pay her the
of the average dower (mahr al-mithl) instead of the dower
in the contract. At the same time, the husband is required to a
in the presence of witnesses that the average dower to whi
will be entitled is equal to a specific sum.177 This is because
to Abu Hanifa, the penalty imposed upon the husband is
the average dower, even if he agrees to pay more.178 The
disagreed among themselves regarding the validity of the
acknowledgement, distinguishing between two cases to w
apply. First, if the contractual dower is fixed at an amount
the average dower, the husband simply acknowledges that h
a claim to her real average dower. In this case, her h
problematic. Second, if the contractual dower is fixed at
higher than the average dower, the husband obligates himself
174 Ibn Qudama, Mughni, IV, 84-5.

175 Sahnun, Mudawwana, IV, 556-7.
176 'Umar b. al-Husayn al-Khiraqi, Mukhtasar al-Khiraqi (Dama
shurat al-Maktab al-Islami, 1384/1964), 137. Ibn Qudama, Mughni, V
Muntaqd, III, 396.
177 Sh 14/2-3. Kh 25/1-2, 72/12, 15. See also Ibn Qayyim, I'lam, I
178 Shaybani, Saghlr, 181.
356 SATOE HORII
the stipulation and he acknowledges that if he violates it, he

her the higher sum as a penalty. The Hanafis were divided on the
of this hlla, which was clearly advantageous to the wife.179 At th
time they tried to insure that it did not work exclusively to her ad
On this point, the Malikis suggest an alternative that is substan
equivalent to the Hanafi hila in the first case: Sahnun asked
Qasim about a wife who partially exempts her husband from t
on the condition that he fulfill her stipulated demands. Ibn a
replied that according to Malik, the exemption is valid, w
stipulations are not binding, unless it is stated that if he violates
he will divorce a future wife or manumit any female slaves. A
to Ibn al-Qasim, however, if the wife stipulates in the marriage c
that she is to receive twice her average dower, and she subs
relieves the husband of half of this sum on the condition that he fulfil
such-and-such, she can claim her average dower if he violates the
stipulations.180
Example six: sale of a slave so that he may be manumitted. Such a
sale is undertaken either because the purchaser wants to be rewarded
for having manumitted a slave, or because financial considerations make
it impossible for the seller to manumit the slave himself, so he sells the
slave to a third party who will manumit him. In this case, if the seller
stipulates that the purchaser is required to manumit the slave, the sale
is not permissible according to the Hanafis because the stipulation
violates the essence of a sale, i.e. transfer of ownership to the purchaser,
since his ownership of the slave is extinguished by the manumission.81'
But the Makharij-authors suggest a hila, taking into consideration the
fact that the purchaser knows what the seller expects of him. The device
is as follows: prior to the sale, the purchaser swears an oath in the
presence of two witnesses to the effect that if he purchases the slave,
the slave will be manumitted, so that manumission occurs at the moment
that he purchases the slave.'82 According to Malik, if a person who
sells a slave stipulates manumission, the stipulation is not binding on
the purchaser, although the sale is valid. But Malik, like the Makharij-
authors, suggested that if the purchaser makes the manumission
conditional upon the purchase, this is binding upon him.'83
179 Shaykh Nizam, 'Alamgiriyya, VI, 394.

180 Sahnun, Mudawwana, II, 219-20, 198. See also Baji, Muntaqa, III, 296-7.
181 'Ala al-Din al-Samarqndi, Tuhfa, II, 67-8.
182 Sh 9/17-19. Kh 25/1-2, 72/12, 15. Shaykh Nizam, 'Alamghlriyya, VI, 394.
183 Sahnun, Mudawwana, IV, 152. See also Baji, Muntaqa, IV, 212-3.
Conclusion
We now explain why hiyal should be and were regarded as an integral

part of legal doctrine. Hiyal were solutions drawn from the materials
of jurisprudence in accordance with the spirit of the law, as interpreted
by the jurists. The HIanafis were not properly "formalists" but rather
"utilitarians" who defined the law as providing remedies for those who
sought them. The Hanafis treated hiyal as intrinsic to their jurisprudence
and called them makharij, i.e. "exits" from anything that places a
constraint upon daily life. The Hanafis sought to incorporate makharij
into their legal doctrine rather than to circumvent them. They developed
makharij into a special genre that was designed to serve as a particular
transmission of Hanafi doctrine as embodied in general sources of
jurisprudence. Those solutions that constituted "exits" in special
contexts were collected and inserted into the Makharij-literature, which
corroborated the practical utility of legal doctrine. For the Hanafis,
makharij were by definition legitimate, although they oscillated between
two distinctive aspects of the concept: (1) actions in defense of prejudice
and (2) "strategies" that are available to those who know how to take
advantage of them, even at the cost of another person's interest. While
not allowing those hiyal that cause prejudice to another, the Hanafis
attempted to balance the interests of the parties concerned on a case-
by-case basis.
The Hanafi concern for the subject was shared by the Malikis, who
developed a similar notion, albeit from a different perspective. The
Maliki principle of sadd al-dhara'i' sought to prevent actions that were
presumed to be harmful. But the principle did not lead them to solutions
qualitatively different from those suggested by the Hanafis and they
too sought remedies drawn from their interpretation of the materials of
jurisprudence.

Reconsideration of Legal Devices (Ḥiyal) by Hanafī Jurists and Malikī Scholars

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Reconsideration of Legal Devices (Ḥiyal) in Islamic Jurisprudence: The Ḥanafīs and Their

(Tokyo University of Foreign Studies)

Hiyal (sg. hlla) in Islamic jurisprudence are "legal devices" or skills

? Koninklijke Brill NV, Leiden, 2002 Islamic Law and Society 9, 3

subtle management of aspects of a legal transaction in a way

It was Joseph Schacht who made the greatest contributions to our

1 Ibn Qayyim al-Jawziyya, I'lam al-muwaqqi'in, 4 vols. (Cairo: Matba'at al-

Ibn Taymiyya (d. 728/1328), the other by the above-mention

between legal theory and legal practice. As he himself no

product of such a formalist position was made by the tradit

20 On this, see idem, introduction to Qazwini, 5.

with regard to specific cases. In this sense, makharij originated

1. The Hanafi hiyal-literature

1.1. The Makharij-group and the notion of makharij

25 Idem, "hijal-Literatur", 217.

treatises, together with some later treatises mentioned by Sc

28 Such as Ibn Nujaym's Ashbah wa'l-naza'ir and Shaykh Nizam's al

"legal" hiyal, but refer only to the use of linguistic devices, as

of a Prophetic hadith transmitted by Abu Hurayra: "Your oat

39 Sh 1/18. Cf. Ibn Abi Shayba, ibid., 509.

adduced Q 65:2: "If anyone shows piety towards Allah, He will

rehensible," Shaybani said, "what I have told you is no hll

There is no harm in hiyal for lawful purposes. Indeed, hiyal are

Thus, Sha'bi made clear that the lawfulness or unlawful

did articulate the criterion, since the notion is corroborated

Yusuf, on the other hand, seems to have been more toleran

1.2. Sa'id b. 'All al-Samarqandi and his "Janna"

Let us now consider the development of makhdrij as a spec

62 Brockelmann, Geschichte der arabischen Literatur, Supplementband, II, 272.

In the introduction, Samarqandi tells us that he collect

as was typical of jurists, discussed these cases for practical

'Uyun al-masa'il4 and the Fatdwa.75 The 'Uyun includes one c

people. According to Nasir b. Yahya al-Balkhi (d. 268/

1.3. The emergence of Makharij-group as a particular transmission

We now turn to the question of how the Makharij-group emerged and

Samarqandi's statement can be interpreted as follows: The early

78 Samarqandi, Janna, fol. 36a/6-15.

masters fully discussed the principal problems, but it was on

That the disciples of Shaybani were targeted by the attack

1.4. Hiyal in Hanafi jurisprudence

According to the Janna, the contents of the Makharij-genre must

83 Samarqandi, Janna, fol. 76a/9-20. On thisfatwd and the ascription to Abu

with the actual situation that makes them useful as "exits". A

If one man owes another a debt, and a third party provides a su

Note that the stipulation to the effect that the guarantor

original debtor stand surety for one another is referred to

I asked: What is your opinion in the case of a creditor to whom

He said: According to our three masters, the original debtor

He said: This guarantor stands guarantee for the debtor on th

husband from her unpaid dower. What happens if the father of

If the father stipulates in the redemption contract that he will

I asked: What is your opinion if a woman has not appointed an agent

88 Shaybani, Al-jami' al-saghir ma'a sharhihi al-Nafi' al-kabir li'l-'Allamat

I asked: What if the father redeems his daughter in return for

He said: The father or a third person [stipulates that] he will indemnify

90 Sh 6/29-33. Kh 67/30-4. Cf. Kh 26/1-2.

Suppose that a man purchases a married female slave, and t

Shaybani distinguishes between two cases in order to expla

92 Sarakhsi, Mabsut, XIII, 127-8.

case in which she is repudiated prior to delivery.96 What is

I asked: A man wishes to purchase a female slave without bein

I asked: What happens if the seller refuses to give her in m