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Between Theory(-ies) and Practice(-s): Legal Devices (Ḥiyal) in Classical Islamic Law

In: Arab Law Quarterly
Author:
Valentino Cattelan Saudi-Spanish Center for Islamic Economics and Finance, IE Business School Madrid Spain

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Abstract

By assuming a disconnection between jurists’ doctrines and the reality of social life, Joseph Schacht interpreted ḥiyal (legal devices) in classical Islamic law as ‘the maximum that custom could concede, and the minimum (that is to say, formal acknowledgment) that the theory had to demand’. Challenging this interpretation, this article argues that ḥiyal were not exclusively the product of commercial customs that were unrelated to the jurists’ ideal law. In actual fact, the diverging contractual theories of the Sunni maḏāhib contributed to the development of diverse ḥiyal practices, whose social acceptance in medieval trade was correspondingly fostered (or rejected) by underlying fiqh doctrines.

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