Operating Principles in Islamic Law: Rida in Hanafi Contract Form
When approaching the inner-workings of the Islamic legal system, some Western scholars view rulings of fiqh as “codes” or collections of independent statements of substantive law not connected to a methodology. To understand a position one merely needs to open a classical compendium and find the prescription for a particular act. Alternatively there have been others who understand Islamic law as a coherent system of thought. Most recently Intisar Rabb has explored the role of doubt in criminal law while Hina Azam has detailed Islam’s approaches to sexual violation.
The current study desires to add to this body of literature by exploring the development of contract form (ṣīgha) in Ḥanafi law. Over the centuries, Ḥanafi contract law moved through a number of stages represented by a slow evolution of the concept of mutual acceptance or Riḍā. In the formative period, independent rulings were used to set the boundaries of these principles. Later stages slowly developed a wider understanding of contracts explicitly placed within the concept of Riḍā as expressed in the Qur’ān. Towards the modern period this operating principle reached its greatest extent and formed the foundation for all commercial interactions. This allows for an easy comparison or transition to a language in European terms and the development of a modern legal system, as in Sanhouri’s adoption of the French Autonomie de la Volonté (Sulṭān al-Irāda).
This presentation of Riḍā supports the concept that a superstructure of established operating principles drives Islamic legal discourse. These principles, separate from the aims of the law (Maqāṣid), are subject to change over time, and that the development of modern legal systems in the Muslim world represented an application of these principles to serve the needs of changing Muslim societies.