Wednesday, July 05, 2006

Khallaf on inferring legal rules from Texts -- Part 1: "Allah has permitted trade and forbidden riba" + polygamy and monogamy

Please see the previous post on the full citation of this article from the Egyptian Journal of Law and Economics January 1940. The translated text will be shown in red and indented, any comments of my own will be shown in this standard grey font, without indentation.

The rules herein were derived by scholars of Islamic legal theory from the linguistic methods of reading words and phrases in Arabic, with the tacit approval of leading Arabic linguists regarding the meanings of words. Those rules are applied equally to inferring rulings from Canonical Islamic Legal Texts as well as interpreting rulings from any other Arabic-language legal texts. This is the case since the Legislator's legislation in any particular language must intend for the terms and articles in the written law to be understood according to the standards of that language and the understanding of its people. Thus, we shall ensure that our practical examples for each rule are given from the Canonical Islamic Legal Texts as well as from our own man-made legal texts (أن تكون من نصوص القانون الشرعي و من نصوص قوانيننا الوضعية). We hope that our legal experts will give us more opportunities for making such applications.

[M.E-G: For brevity, I shall only translate examples dealing with Islamic Legal Canonical Texts.]

The First Rule

"An Islamic Legal Text (النص الشرعي) may be used for inference based on phrases (عبارته), hints (إشارته), inferences (دلالته), or necessary consequences (اقتضائه). Those methods vary in the strength of their resulting inferences. Thus, if they lead to different inferences, what is understood linguistically from the phrase supersedes what is understood by hint. Both linguistic and hinted meanings would supersede inferential meanings. This applies equally to any legal text written in the Arabic language."

The general eaning of this rule is that any legal Text (i.e. from Qur'anin verses and Prophetic Hadith) leads to inferences beyond its immediate linguistic meaning, since it may also have other meanings inferred based on hints, logical inference, or necessary consequences. All such meanings can be used as proofs inferred from the Text, since one who is bound by the legal import of a Text is bound by all its linguistically-accepted inferred meanings, using all of the listed methods. As mentioned before, the means of inference vary in strength, which becomes relevant when opposing inferences are derived from the same text.

We now discuss this rule, and the four means of inference listed therein, in some detail:

1. The Legal Phrase: (عبارة النص) By "legal phrase", we mean the text itself, consisting of its words and sentences. What is understood from the legal phrase is the immediate meaning that is derived from its phrasing and that is the most likely intended meaning from that phrasing. Thus, the immediate linguistic inference is the legal meaning that can be derived directly from the linguistic structure of the text (its phrasing) directly or indirectly.

There are numerous examples of such explicit phrasing of legal texts to make the ruling manifest. Indeed, every religious or man-made legal text has such an immedite linguistic meaning. Some of those texts have additional meanings inferred from hints, logical inference or necessary consequences, and others don't. There is no need to give simple examples where the legal text has an obvious meaning. Instead, we shall give examples to distinguish between the immediate linguistic import and the inferred meanings of legal texts.

Allah (swt) said: "and Allah has permitted trade and forbidden riba". This Text's language has two manifest linguistic meanings, both of which were intended by the context. The first is that sales are not similar to riba (أحدهما أن البيع ليس مثل الربا). The second is that the legal ruling of sales is permissibility and of riba is prohibition. Both meanings are inferred from the text, even as the first meaning is the fundamental one, since the verse in its context was a reply to those who claimed that sales are similar to riba. The second meaning is derivative or indirect (و الثاني مقصود تبعا), because denial of similarity required clarifying the legal status of each transaction, so that one may infer from the difference in ruling that the two are not similar.

[M.E-G: The economist in me cannot resist making a comment at this point. This verse has been invoked whenever economically minded participants at Islamic finance conferences object that Islamic banking practices are identical to the conventional practices that they accuse of violating the rules of riba. All you've done is add layers of spurious sales, leases, etc., we argue, but the result is the same, so either both are riba or both are not. A favorite response by Islamic bankers and jurists on their payrolls is to quote this verse, claiming that Allah (swt) did not deny that sales and riba are similar, but maintained nonetheless that one is permitted and the other is forbidden. They thus invoke this verse to argue that form is what matters in the transaction, even if the substance is made arbitrarily similar to what they argue to be riba, which leads to terrible incoherence in the service of their brand of religious peddling. However, as Khallaf points out, the statement that one is forbidden and the other is permitted is to inform us that the two are in no way similar. It thus becomes our job to find the fundamental differences and avoid what is forbidden, rather than focusing on artificial differences to enrich ourselves in the name of religion.]

Allah (swt) also said: "If you fear being inequitable towards orphans, then marry as many [other] good women as you wish, two, three, or [up to] four; but if you fear that you will not be fair, then one".

Three meanings can be inferred from this verse: (1) permissibility of marrying a number of good women, (2) restriction of the permissibility to a maximum of four wives, and (3) the requirement to restrict oneself to monogamy if one fears being unfair if polygamous. It is clear that all three meanings follow immediately by the phrasing of the Text, and all are intended meanings based on the context.

However, the first meaning is derivative, while the second and third are intended to make fundamental statements. The first meaning is derivative since the verse is within the context of plenipotentiaries for orphans, who were afraid of taking the responsibility of guardianship lest they abuse their control of the orphans' property. Thus, Allah (swt) alerted them to the fact that their fear of abuse in dealing with property should also extend to a fear of unlimited polygamy. Thus, restricting marriage to a maximum of four or one is a requirement on anyone who fears transgressing against the rights of others, which is the fundamental intended meaning of the verse based on its context. Thus, the permissibility of marriage is not the fundamental meaning, but a derivative one, while the fundamental meaning is -- in fact -- restricting marriage to four or to one [as the case may be].

[M.E-G: It appears to me that Prof. Khallaf in this last passage is making a strong case for monogamy, while maintaining the upper limit of four made permissible by the verse. By arguing that the essence of this verse is restriction of the scope of marriage to avoid unfairness, and arguing that the restriction of the number is addressed to those who fear to be inequitable in dealings with orphans or others, he clearly implies that it is better to restrict oneself to monogamy, since there is no room for inequity between wives if there is only one. Of course, the unspoken connection is to the later verse "and you will not be successful in seeking [perfect] fairness between women [that you marry]...".]

Next installment, iA, continuation of the detailed discussion of The First Rule, starting with 2. Textual hints (إشارة النص)


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