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Indexing the Self: Intent and Expression in Islamic Legal Acts

Author(s): Brinkley Messick


Source: Islamic Law and Society, Vol. 8, No. 2 (2001), pp. 151-178
Published by: BRILL
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INDEXING THE SELF:
INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS*
BRINKLEY MESSICK
(Columbia University)
Abstract
This is a discussion of the
theory
of intent in Islamic law. In an extended
example,
I focus on the doctrinal views of
Zaydi
school
jurists
from
Yemen,
but I also
indicate that the issues and the
analytic
distinctions characterize the Sunni schools
as well. As in western
law, ascertaining
intent is fundamental to
applied
Islamic
legal analyses
in shari'a courts,
in matters
ranging
from contracts to criminal
cases.
My
discussion here, however,
is limited to the doctrinal
theory
of such
intent-based
legal analyses,
about which the Muslim
jurists, including
the Yemeni
jurists
of
my
extended
example,
hold
divergent opinions. Following
the Yemeni
jurists
in their
analyses,
I consider the relation of intent and manifest
expression,
including
words and
writings,
across the different domains of bilateral and
unilateral acts.
TO
EXAMINE A THEORY OF LEGAL INTENT is also to touch
upon
a
number of
important
related
matters,
and I want to mention several of
these at the outset. As in western
law,
the Islamic
conception
of
legal
intent is
predicated upon
what Charles
Taylor,
in his Sources
of
the
Self:
The
Making of
the Modern
Identity (Harvard University Press,
1989)
refers to
generally
as
concepts
of "inwardness." In
Taylor's
account,
the historical
development
of ideas about the human
interior,
subjectivity
and the self are fundamental to the advent of the modern
western individual.
Although
narrower in
scope, my
discussion of
legal
intent in Islamic law also involves distinctive
conceptions
of human
"inwardness" and
these,
in
turn, pertain
to a different
history
of the self
and the individual.
Although
we are not
yet
in a
position
to
imagine
for
*
Research in Yemen was
supported by
the Social Science Research Council
and
by Fulbright.
An
early
version of this
paper
was
presented
at a conference on
"Juridical
Technologies: Making
Persons and
Things,"
at the
University
of
London,
in
December, 1999. I
appreciate
the detailed comments of
organizer
Martha
Mundy
and a first
reading by
Baber Johansen. It was then
presented
at the
Workshop
on
"The
Legal
Person in Islamic Law," organized by
Bernard
Haykel
and David
Powers at Cornell
University
in
September,
2000. I
especially appreciate
the
detailed comments of discussant Ossama Arabi and observations
by
Aaron
Zysow.
I have revised the
paper
based on instructive comments from members of the
Executive Board of Islamic Law and
Society
and an outside reader. I want to
express my particular appreciation
for the sustained efforts of David
Powers,
as
both interlocutor and editor.
?
Koninklijke
Brill
NV, Leiden,
2001 Islamic Law and
Society 8,2
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BRINKLEY MESSICK
this individual
anything
like Michel Foucault's
genealogy
of the wes-
tern
subject,
the
conceptions
and
problems
elaborated
by
the Muslim
jurists concerning processes
of intent
represent
essential materials for
such a
project.
Islamic law is known for its marked "individualistic"'
character and the
specific
dimension of the Muslim individual I focus
on here is this
legal person,
who I refer to as the "shar'i
subject."
The most
important legal
issues raised in the doctrine on intent center
on its role as a foundation of
legal authority
and on associated
prob-
lems
concerning
the aims and means of
legal interpretation.
Ascertain-
ing
intent is fundamental to shari'a court
rulings
in matters
ranging
from contracts to criminal cases.2 What is
ultimately
at stake in such
1
E.g., Joseph Schacht,
An Introduction to Islamic Law
(Oxford:
Clarendon
Press, 1964),
4.
2
I demonstrate this in detail in
my
book in
preparation,
which concerns
shari'a court cases from mid-twentieth
century
imamic Yemen.
My findings,
which
center on
lengthy
and formal evidential
processes,
are different from those of
Lawrence
Rosen, who has examined the
place
of intent in
contemporary
Moroccan
courts. See his
Bargaining for Reality (Chicago: University
of
Chicago Press,
1984), 52-56; idem, "Intentionality
and the
Concept
of the
Person,"
in Criminal
Justice, ed. J. Roland Pennock and John W.
Chapman (New
York: New York
University Press, 1985), 52-77; idem, The
Anthropology of
Justice: Law as Culture
in Islamic
Society (New
York:
Cambridge University' Press, 1989), 51-53;
and
idem, The Justice
of
Islam:
Comparative Perspectives
on Islamic Law and
Society
(New
York: Oxford
University Press, 2000), 76-77, 118,
144-45. Rosen also has
edited an
important comparative
volume, Other Intentions: Cultural Contexts and
the Attribution
of
Inner States
(Santa
Fe: School of American Research
Press,
1995),
which includes his own
chapter,
"Have the Arabs
Changed
Their Mind?
Intentions and Discernment of Cultural
Change,"
178-200. I endorse Rosen's
overall view of the
significance
of the
study
of intent: "In order to understand the
development
and
application
of the
concept
of
intentionality
in
any legal system
it
is
indispensable
to
place
this
concept
in the
larger
context of the cultural definition
of the
person" (Rosen 1985:53).
I also endorse his caution about the associated
problem
of the
comparative study
of the individual: "We can see an
emphasis
on
the individual and
mistakenly equate
it with the western notion of individualism,
of a self-directed and
self-fashioning person
whose inner, psychic
structure
generates
a self that
is, whatever its overt
manifestations, deeply
and
truly private" (Rosen
1989:53).
Rosen is not concerned with the doctrinal issues behind
legal intent,
which are the
subject
of the
present article,
and he treats intent in court as a matter
of
interpreting
broader social and cultural information rather than
presented
evidence.
According
to Rosen
(2000:77),
the Moroccan
judge
reads an individual's
"state of mind"
by acquiring
an
understanding
of his or her "social
background,
connections,
and modes of
negotiating obligations."
He continues, "It follows that
for the Arabs another's intentions are
regarded
as
readily
available to discernment
and do not constitute a
separate
domain hidden from human view." He
quotes
a
Moroccan
judge
as follows: "If I
question people,
if I find out who
they
are and
what
they
have
done,
I can
always
tell if
they
are
lying,
I can
always
tell their
intent
(niya)" (2000:77;
cf.
1989:52, 1984:53).
These
findings may
be
compared
with the
approaches
of
Anglo-American judges
who "treat certain forms of outward
behavior as conclusive evidence of the existence of mental states or
impute
to an
individual the mental state that the
average
man
behaving
in a
given way
would
have had"
(H.L.A. Hart, Essays
in
Jurisprudence
and
Philosophy
[Oxford:
152
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
analyses
of intent is the constitution of shar'i
subjects, together
with
their
properties, rights
and
obligations. Employing specifically
Islamic
understandings
of human
interiority
and of the
self,
these doctrinal
views on intent are crucial
components
of the
legal theory
of the shar'i
subject and, by
extension,
where this law is
applied, they
are formative
of the identities and
worldly
relations of such
subjects. However, legal
analyses
of the intent-based
meanings underpinning
human acts also
are structured
by
a foundationalism of
varying degrees
that locates the
site of authoritative
meaning-generation internally,
within the
self,
and
thus
beyond
direct observation. As is true in western
analyses
of such
phenomena
as
"original
intent" and "motive,"3 the
interpretive problem
for Muslim
jurists
is one of
attempting
to know that which is defined as
essential and
yet, by
its understood
nature,
inward and inaccessible.
The contested solutions to this
interpretive problem
involve the
study
of
manifest
signs
and forms of
legal expression, including,
but not limited
to,
individuals'
spoken
words and
writings.
It is
recognized
that
conceptions
of
intentionality figure importantly
in Muslim
approaches
to acts in
general,
and to
religious
acts in
particular.
One indication of this
general significance
of intention in
relation to acts is the
opening
hadith in the authoritative collection of al-
Bukhari: "Works are rendered efficacious
only by
their intention"
(innama
al-a'mdl
bi'l-niyya).
This famous hadith
appears
in other
canonical collections as well
and, according
to
Wensinck,4
whose
translation this
is,
its
placement
in al-Bukhari indicates that it serves as
something
of a "motto" for his whole collection. As in this
hadith,
the
Arabic term in
question, niyya, commonly
is associated with "works" in
general,
but it is
perhaps
best known as the
key
term for "intent" in
"ritual acts"
('ibdddt),
such as
prayer.
Schacht states
generally
that "a
fundamental
concept
of the whole of Islamic
religious law,
be it
concerned with
worship
or with law in the narrow
sense,
is the
niyya
(intent)."5
Clarendon, 1983], 96). Early
twentieth
century disputes concerning
statements of
intent to
worship, among
the
Gayo
of
Sumatra,
are
analyzed
in John R.
Bowen,
"Modern Intentions:
Reshaping Subjectivities
in an Indonesian Muslim
Society,"
in
Politics and
Religious
Renewal in Muslim Southeast Asia,
ed. Robert W. Hefner
and Patricia Horvatich
(Honolulu: University
of Hawai'i
Press, 1997),
157-81.
3 Some of the
interpretive possibilities
are
suggested by Stanley Fish, Doing
What Comes
Naturally (Durham
and London: Duke
University Press, 1989)
and
Vincent
Crapanzano, Serving
the Word: Literalism in America From the Bench to
the
Pulpit (New
York: The New Press, 2000),
279-303.
4 El2 s.v.
Niyya.
This article treats intent
exclusively
in the domain of the
'ibdddt.
5
Schacht,
Islamic
Law,
116-18. A
key
discussion of intent
may
be found in
153
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BRINKLEY MESSICK
But what is known of the
analytic place
of intent with
respect
to
"law in the narrow sense?" Recent studies concerned
mainly
with the
early
and
late,
that
is,
the classical and modern Hanafi school of
Islamic
legal interpretation,
have raised issues
surrounding
intent. In
his work on tenth to twelfth
century
Hanafi
jurists
of
Transoxania,
Baber Johansen contrasts two
analytic "spheres"
of
legal exchange,
the
"commercial" and the
"symbolic"
or "social."6 With
respect
to the
former,
Johansen follows Hanafi
terminological usage;
the latter is his
own term for a
sphere
that remains unlabeled for these
jurists.
One of
several basic distinctions Johansen observes between these two
spheres
is that whereas
legal
acts within the
sphere
of "commercial"
exchange
involve
analyses
based
exclusively
on
intent, excluding
formalism
(p. 77),
those within the "social"
sphere, including
contracts such as
marriage,
involve "a strict formalism with
very
little
place
for intent"
(p. 78). Thus,
for
example,
"In the
marriage
contract the formula once
spoken
is
binding
and
produces
its
legal
effects"
(p. 77).
Toward the
end of his
discussion, however,
Johansen makes a remark that
brings
matters forward to the
changes
and codifications of the modem
period.
In the twentieth
century,
he
writes, "something
that has
happened
unnoticed for most of the observers is the abolition of the formalism of
social
exchange" (p. 102).
In two recent
articles,
Oussama Arabi7 has examined
intent, first,
in
connection with
early
twentieth
century
amendments to the
path-
breaking
codification of shari'a-based civil law in the late nineteenth
century
Ottoman code known as the
Majalla, and, second,
in the work
of the Arab world's
great
mid-twentieth
century
law code
drafter,
'Abd
al-Razzaq
al-Sanhiri. In the first
article,
Arabi addresses the
problem
of "freedom of
contract," which,
he
assumes,
is not
permitted
in Islamic
law.
Seeking,
as a modernist
legal project,
to enhance the
possibility
of
freedom of
contract,
late Ottoman reformers turned
away
from the
impediments they
saw in the standard Hanafi sources and invoked the
Hanbali
jurist
Ibn
Taymiyya (d. 1328),
who is
quoted by
Arabi as
follows:
Y. Linant de
Bellefonds,
Traite de Droit Musulman
Compare',
3 vols.
(Paris:
Mouton, 1964).
6
Baber
Johansen, "The Valorization of the
Body
in Muslim Sunni
Law,"
Princeton
Papers: Interdisciplinary
Journal
of
Middle Eastern Studies 4
(1996):
75-
117.
7
Oussama
Arabi,
"Contract
Stipulations (Shurut)
in Islamic Law: The Otto-
man
Majalla
and Ibn
Taymiyya,"
International Journal
of
Middle East Studies
30:1
(1998), 29-50; idem, "Intention and Method in Sanhuri's
Fiqh:
Cause as
Ulterior
Motive,"
Islamic Law and
Society
4:2
(1997),
200-23.
154
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
The
principal
rule in contracts is the consent of the
parties (al-aslfi'l-
'uqud
ridci
al-muta'dqidin),
and the
legal
effect is what the
parties
obliged
themselves
contractually [to undertake]....
Since God does not
command for commerce
except
mutual consent
(tarddi),
mutual consent
validates commerce
(al-tarddi
huwa al-mubih
li'l-tijdra)...;
thus if the
parties agree together
the contract is
valid,
except
if it contains what
God and His
Prophet
forbid such as
trading
in wine and similar
[forbidden] objects.
According
to
Arabi,
"whereas the Hanafis rule that mutual consent
by
the
parties
to the terms of contract is
only
a
necessary
condition of
validity
and not sufficient to validate the
transactions,"
the
adoption
of
Ibn
Taymiyya's
different
analytic
view would amount to "a substantial
advance for freedom of transaction in Islamic Law"
(p. 41).
In his second
article,
Arabi articulates a
widely
held
assumption
in
the
following
terms: "In Islamic law the
centrality
of the inner world of
the Muslim
subject
shows foremost in the law of
worship ('ibdddt)"
(p. 211), or,
as he states in his
opening
line,
"The
weight
of intention in
Islamic law is
unevenly
distributed between ritual law
('ibdddt)
and the
law of
worldly
transactions
(mu'dmalat)" (p. 200).
In Arabi's view,
one of Sanhuri's modernist aims was to find or construct notions of
ultimate
intent,
or
cause,
in Islamic law similar to those
operative
in
modern French law. Arabi maintains that
although
the four Sunni
schools of law
agree
on the
importance
of the
specific subjective
con-
dition of consent
(ridd', tarddi)
in
pecuniary
transactions
(Johansen's
"commercial"
exchanges), they
differ on the
legal weight
of
larger
intention or motive
(qasd, niyya),
which Arabi also refers to as "ulti-
mate,"
"ulterior" and
"driving."
Part of Sanhuri's effort was to trans-
cend the limitations of the Hanafi
position,
characterized
by
Chafik
Chehata in the
following
terms: "Motive is so little taken into con-
sideration that the sale of an
object
is
clearly
considered to be valid
even if the ends it serves are
illegal."8 Seeking
a viable notion of
ultimate
motive,
Sanhuri's
investigation
thus turned
away
from the
Hanafis and toward the
juristic positions
of the Maliki and Hanbali
schools,
which he understood as closer to modern western law.
Zaydl positions
The case of the
Zaydi
school
jurists
of Yemen is different in that it
concerns a debate about intent conducted
largely
within the confines of
8
Chafik
Chehata, Theorie Ge'nerale de
l'Obligation
en Droit Musulman
Hanefite (Paris: Editions
Sirey,
1969 [1936]), 70,
cited in Arabi 1997:201.
155
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BRINKLEY MESSICK
the school.
Although
the
Zaydis
are a Shi'i
school,
their
larger
frame of
reference is the four Sunni
schools,
which
typically appear
in their
comparative
citations.
Although
the
asserting
of
position persisted
well
into the twentieth
century,
the
Zaydi
debate was not
"modernist;"
unlike
either the late Ottoman
jurists
or
Sanhfiri,
the
Zaydi
debate did not
involve an
explicit dialogue
with
ideally perceived
western
legal
models
such as ultimate intent or freedom of contract.
The
Zaydi jurists may
be divided into the adherents of two
positions.
These are illustrated
by
the
controversy concerning
the
specific type
of
intentionality, namely,
the mutual consent of the
parties,
found in
bilateral
contracts,
a
topic
I will examine in
greater
detail below with
reference to the contract of sale.
Simply stated,
while both sides
agree
on the
ultimate, contract-creating authority
of mutual
consent, they
differ about the
import
of
specific
contractual
expressions by
the
par-
ties,
typically involving
such means as
spoken
words or
writings.
One
side in the debate is
represented by
the
Zaydi
school's authoritative
fifteenth-century
law book, The Book
of Flowers, by
Imam Ahmad b.
Yahya
b.
al-Murtada,
who died in 1436.9 In the twentieth
century,
the
positions
of this
early
work were
developed
and extended in what
may
be the last of
many
commentaries
upon
it (and the first written for
print
publication),
a four-volume book called The Gilded Crown, by
Ahmad
b.
Qasim al-'Ansi,
who died in 1970.10 The basic
position
of the side of
the debate associated with al-Murtada and al-'Ansi is that various sorts
of
linguistic analyses
are
required
of the contract
language, including
attention to the
dialogic
character of the
reciprocal
locutions in a
bilateral
undertaking.
The
opposed
view is
represented by
Muhammad
'All al-Shawkani
(d. 1834), notably
in his critical
commentary
on The
Book
of
Flowers called The
Raging
Torrent.1 In the
1920s,
a concise
principle (ikhtiyar) embracing
a similar view was laid down
by
the rul-
ing Zaydi
imam, Imam
Yahya
Hamid al-Din
(d. 1948),
which was then
commented
upon
in a treatise
by
'Abd Allah al-Shamahi.12 This
op-
posed position,
held
by
al-Shawkani and Imam
Yahya
(as elaborated
9 Ahmad b.
Yahya al-Murtada,
Kitdb al-Azhar fi Fiqh
al-A'imma al-Athar
(Beirut: n.p., 1972).
10
Ahmad b.
Qasim al-'Ansi, Al-Tdj al-Mudhhab li-Ahkdm
al-Madhhab,
4
vols.
(San'a':
Dar al-Hikma
al-Yamaniyya,1993 [orig. 1938-47]).
A brief
biography
of al-'Ansi is in Muhammad Zabara, Nuzhat al-Nazar
(San'a':
Yemeni
Studies
Center, 1979),125.
11 Muhammad b. 'All
al-Shawkani, al-Sayl
al-Jarrdr
al-Mutadaffiq
'ald
Hadd'iq al-Azhdr,
4 vols.
(Beirut:
Dar al-Kutub
al-'Ilmiyya, 1985).
12
'Abd Allah
al-Shamahi, Sirdt al-'drifin ild idrdk
Ikhtiydrdt
Amir al-
Mu'minin
(San'a':
Maba'at
al-Ma'arif,
1356
A.H.),
6-10.
156
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
upon by al-Shamahi),
scorned
linguistic analyses
of contractual
language
and advocated a
radically pure analysis
based
exclusively
on
"indications" of
intent,
whatever
they might be, including
silence.
As I will discuss
later,
matters could be
simpler
when it came to
unilateral
acts,
such as a man's
repudiation
of his wife. Absent the
dialogic complications
of
contracts,
an individual's words could be
taken,
for
some,
as an accurate index of his intent
and,
in this
domain,
words alone could have
binding authority.
Matters were more
complicated, however,
when acts were
expressed
in written form.
Expressions
According
to law book
chapters
on
Sale,
a basic characteristic of this
contract form is that the transaction occurs on the basis of
reciprocal
engagements by
the
buyer
and seller. These are
conventionally
trans-
lated as "offer" and
"acceptance," although
the
examples
that follow
show that these translations are inexact. The "offer and
acceptance"
(ijdb wa-qubul)
is a doctrinal formulation used to refer to the actual
language
used
by
the
parties.
The law books
give examples
of such
expressions.
For
instance,
an
early jurist
of the Shafi'i
school,
al-
Nawawi
(d. 1277),
who is studied in Lower
Yemen,
writes of the
contract of sale that "its condition is an offer such as 'I sold to
you'
or
'I made
you possessor'
and an
acceptance
such as 'I
bought'
or 'I
became
possessor'
or 'I
accepted"'.13
In the Shafi'i school such dia-
logues
of
past-tense14
statements are
necessary
for
binding
contracts
and,
as a
consequence,
the school's commentators
analyze
numerous
examples
of
possible
locutions.
In the
Zaydi school, according
to The Book
of Flowers,
the
requisite
binding reciprocal
statements of "offer and
acceptance"
should occur
"with the
expression
of
ownership transfer, according
to custom"
(bi-
13
Yahya b. Sharaf al-Nawawi, Minhdj al-Tdlibin
(n.p.:
Dar
Ihya'
al-Kutub al-
'Arabiyya, n.d.),
39.
14
I should make
explicit my
choice in
translating
these contractual
verbs,
and
other
examples
to
come,
in the
past
tense. In
Arabic,
verbs in this tense have a
"past"
form and are
analyzed
this
way by
the Arab
grammarians.
For the western
Arabist, however,
the
grammatical category
for this tense is known as the
"Perfect,"
and in such contexts the
preferred
translation for what I have rendered as "I sold"
would be a modified
present
or
"performative" form, such as "I
hereby
sell." I have
rendered these verbs in the
past
tense in
English
in an
attempt
to follow the Islamic
jurists,
for whom
marking
the
completion
of the
legal
act is a central
analytic
feature.
Secondarily,
the
English
notion of a
"performative"
verb form and
present
tense translations
may
confuse the main
legal
issue
(introduced
later in this
essay),
namely,
whether such
expressions
are
"performative"
acts or not.
157
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BRINKLEY MESSICK
lafzi
tamllkin hasab
al-'urfi).15 Among Zaydi jurists,
this
key
formu-
lation stands for one side in the debate
concerning
the relative
significance
in bilateral contracts of words and intentions.
This notion of
"expression" (lafz, pl. alfdz),
used in this
passage
from The Book
of Flowers,
also is at the center of Imam
Yahya's
twentieth
century principle
on the
significance
of
language
in bilateral
contracts. As
noted,
the Imam's
principle
follows al-Shawkani in
taking
an
opposite approach
to the view
represented by
The Book
of
Flowers. Such imamic
principles (ikhtiydrdt,
also known as
ijtihaddt)
were
designed
to
guide
shari'a court
judges
of the realm in their
handling
of actual cases. To this
end,
a list of these brief
principles
was
posted
on the wall of the imamic-era
Appeal
Court. With the char-
acteristic concision of such
ikhtiydrdt,
Imam
Yahyai's principle
states:
Expressions (alfiz)
are not conditions in
sale,
that
is,
in the offer and
acceptance,
or in lease
[another
bilateral
contract-BM],
since the crux
(mandt)
of
authority
is mutual consent
(al-tarddi) regarding
all that is
indicated.16
Although
the Imam himself said
nothing
further on the
topic,
this
principle,
one of his thirteen
original ikhtiydrdt
issued soon after he
assumed rule over the
highlands following
the demise of the Ottoman
Empire
in
1918,
is the first to be taken
up
in the later
commentary
devoted to them
by
al-Shamhli.17
Following
his initial
rendering
of the
imam's
principle
as a line of
verse,
al-Shamahi commences an extended
prose gloss.
In this
commentary,
which I now follow at some
length,
al-Shamahi claims that the imamic
position
is close to those of several
Sunni
schools, including
Shafi'is such as al-Ghazzali and
al-Nawawi;
to that of
Malik,
the
eponym
of the
Malikis,
who is
quoted ("bay'
[the
sale
contract]
is contracted with all that the
people
consider 'sale' to
15
Al-Murtada,
Kitdb
al-Azhdr,
143.
16
I have
slightly
different
prose
versions of this
ikhtiydr
from several
sources,
one
published (Rashad
Muhammad
al-'Alimi, Al-Taqlldiyya
wa'l-Haddtha
fi
al-
Nizam al-Qdnuin al-Yamani
[San'a':
Dar
al-Kalima,1989], 258)
and two in
untitled
manuscript
versions
(by
'Abd al-Rahman b. 'Ali al-Haddad,
who died in
1922, and
by
Muhammad b.
Yahya
b.
al-Mutahhar).
I also have two versions in
verse, by
al-Haddad and
by al-Shamahi, Sirdt,
6. I translate the
prose
version I
obtained from al-Mutahhar which contains the added
parenthetical comment,
"that
is,
in the offer and
acceptance."
In a
post-revolutionary rendering
of this
ikhtiydr,
Muhammad Isma'il al-'Amrani
(Nizam al-Qadd'
fi
al-Isldm
[San'a':
Dar al-Jil,
1984], 229)
also refers to "the
legality
of sale and
purchase
and the offer and
acceptance."
17
Al-Shamahi, Sirdt, 6-10. See also
al-'Ansi, Taj, 2:454n,
which indicates the
specific
location of this imamic
ikhtiydr
within the
chapter
on "Sale" in the The
Book
of
Flowers. In his note al-'Ansi also
gives
a concise
gloss,
which is
nearly
an
exact
excerpt
from al-Shamahi
(p. 6).
158
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
be");
and also to that of the
Hanafis, including
the late nineteenth-
century
Ottoman
Majalla,
the first
quasi-modern
code,
and also the
official law of Ottoman Yemen in the
fifty year period up
to 1918.18
Al-Shamahi refers in
passing
to a
principle
established in the
opening,
general "legal principles"
section of the Ottoman
Majalla.19 Although
he does not
quote it,
the third of these
general principles begins,
"Decisive in contracts is intentions and
meanings,
not
expressions
and
forms..."20
Sale and lease first are associated
by
al-Shamahi with all the
types
of "transactions" (mu'amalat) which involve some form of
exchange.
He states
that, according
to the
position
taken
by
Imam
Yah.ya,
in such
transactions neither the
particular legal
"forms"
(siyagh)
nor the
"expressions" (alfdz)
of the
agreement
constitute conditions.
"Rather,"
al-Shamahi
continues, using
the
language
of the Imam's
opinion,
"the
crux
(mandt)21
in
implementing
a sale or in
canceling
it is the consent
(rida)
of the
exchangers
and their
having parted consenting."
I
suggest
that the center of the
interpretive problem, however,
is that this consent
is seated
internally, specifically,
as al-Shamahi
notes,
in the human
"heart."22
The
existence,
or
not,
of
"consent," or,
more
precisely,
of "mutual
consent"
(al-tarddl),
and thus of the
legality
of the
transaction,
the
existence of the
property rights
entailed and the shar'i
subject
identities
created, may
be
established,
al-Shamahi
explains, through
an examina-
tion of the "manifest
meaning
of the discourse"
(zdhir al-khitdb),
or
through
a
"sign"
or "indication"
(amdra).
This determination involves
any
available avenue of
communication, "any way
we can learn of the
18
Al-Majalla,
Arabic translation
(Istanbul, 1888).
See
Brinkley Messick,
The
Calligraphic
State
(Berkeley: University
of California
Press, 1993), Chapter 3,
for
a
general
discussion.
19
These
principles
were
adapted
with modifications from the
sixteenth-century
jurist
Ibn
Nujaym.
See Linant de
Bellefonds,
Droit Musulman
Compare,
1:125.
20
Text: al-'ibra
fi'l-'uqud li'l-maqdsid
wa'l-ma'dni id
li'l-alfdz
wa'l-
mabdnl.... al-Majalla,
11. The translation in Linant de
Bellefonds,
Droit Musul-
man
Compare, 125, leaves out
"meanings" (ma'dan).
The
preceding text, principle
2,
is more
general.
It is
quoted (from
al-Mahasini's
Sharh)
in
Arabi,
"Intention and
Method in Sanhiri's
Fiqh," 211, n.29, as: "Actions
[al-umur]
are
judged by
their
aims
[maqdsidiha]:
this
signifies
that the
ruling regarding
an action is a function of
the
aim-maqsud-of
that action."
21
The term is used
by al-Shawkani, Sayl al-Jarrdr, 3:6,
in his
commentary
on
the
chapter
on sale in The Book
of Flowers,
and it also is used in
Zaydi
usuil al-
fiqh.
22
Qalb, a
key
term in the Islamic
understanding
of the human interior. See
Messick,
The
Calligraphic State, 87,
for memorization "on the surface of the heart"
as a form of internal
inscription
in classical instruction. See also the
general
article
in EI2 s.v. Kalb.
159
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BRINKLEY MESSICK
occurrence of
consent, by any
method we
perceive it,
whether
by
an act
or an
expression."
The
point
for al-Shamahi is to
attempt
to establish
"consent to the
exchange"
and the indication of
"giving
and
taking" by
means of
any variety
of "contextual indicator"
(qarina).23
In such an
analysis,
"the
expressions (alfdz)
which
they [viz.,
the
parties] stipu-
lated are
only
one of the contextual indicators." A basic tension in this
argument
nevertheless centers on the existence and the
precise import
of
such
expressions, including any
contractual
language,
and the extent to
which
they may provide
the most
important modality
of contextual
evidence.
The
significance
of
specific
words such as "sale" is
explored
as al-
Shamahi turns to the
original (asl)
sources on the
matter, including
both
Qur'anic passages
and hadiths. Here he
analyzes
what is known of
prevailing
custom ('ada,
'urf)
in both the
pre-Islamic
and the
early
Islamic era.
Citing
other well-known works of
Zaydi jurisprudence,
al-
Shamahi characterizes "commerce"
(al-tijdra)
and "sale"
(al-bay'),
as
Marcel Mauss himself
might have,
as
involving "something customary
to
[all] existence, namely,
the
exchange
of
equivalents,"
and
also,
as
"the basis
upon
which the human world is built." Al-Shamahi's con-
temporary, al-'Ansi,
the modem commentator on The Book
of Flowers,
states that the received consensus about "sale" is that it is
"among
the
greatest
means of inducement to work in this
worldly life,
and
among
the
greater
causes of civilization and culture."24
According
to hadiths cited
by
both al-Shamahi and
al-'Ansi,
"sale"
(bay')
in the
Prophet's
era was a conventional contractual means for
transferring privately
owned
property,
or
milk,
from one individual to
another. In the
law,
al-Shamahi
notes,
when a
principle
established
by
the
Prophet
is not
provided
detail
by him,
the
necessary
detail is to be
determined with reference to
prevailing
custom. Pre-Islamic
custom,
current also in the time of the
Prophet,
was for
contracting parties
to
employ
conventional forms or
signs (suwar), including
the
grasping
of
hands-acts at the
etymological origins
of some of the
key legal terms,
including
"sale"25-before
separating
from one
another,
and these
23 J. N. D.
Anderson,
Islamic Law in
Africa (London:
Frank
Cass, 1970), 372,
defines
qarina
as
"context, indication, circumstantial evidence." See also Wael B.
Hallaq,
"Notes on the term Qarina in Islamic
Legal Discourse,"
Journal
of
the
American Oriental
Society
108
(1988),
475- 80.
24
Al-'Ansi,
Tdj, 2:307.
25
Concerning
the term
safqa,
which is not mentioned
by
al-Shamahi, Schacht,
Islamic
Law, 145, notes, "The conclusion of the contract is
essentially informal;
only
the literal
meanings
of certain technical
terms,
such as
safqa, 'striking
hand
upon hand,'
for
concluding
a
contract,
reflect former
symbolic
acts." In the Shorter
160
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
provided
the
requisite
contextual indicators
(qard'in)
of consent. The
Prophet
affirmed some of these forms and disallowed others. He
specifically
forbad three
types
of transactions which involved uncer-
tainty,
unwarranted risk and other
problematic
conditions.26
By
contrast, among
those forms he authorized were "the
expression
of sale
and
purchase (lafz al-bay' wa'l-shira')."
The
Qur'an (2:275)
then is
quoted:
"God sanctioned sale
(bay')."
Al-
Shamahi
explains,27
"This
Qur'anic
verse is clear and
unproblematic
[to
interpret],
because 'sale' is
intelligible
in the
[Arabic] language
and
known to the Arabs. It was their
customary practice,
and their world
was based on it." The fact that the
Qur'an
does not refer to the forbid-
den transaction
types
but limits itself to
bay'
and related forms "is an
indication
(dalll)
that its
expression (lafz),
and related
expressions
signifying
its
meaning,
are to be
positively
considered in
[evaluating]
the
implementation
of the contract." For each of the
differing types
of
related contracts
(sale, lease, pawn, gift, etc.)
consent is associated with
a
specific pattern
of
value-transfer,
and this is
indicated,
al-Shamahi
notes, through signs (suwar), including
the use of the
specialized
contract
name,
or noun
(ism).
As he
states, however,
these
represent
"only
the voiced word
(al-qawl),
which translates what is in the self
(nafs)."
If the "heart" is the
specific metaphorical
locus of
intent,
the
nafs,
the
"self,"28
is the
key general category
of Muslim
legal
"inwardness."
In and of
itself, then,
the
specific wording employed
in sale and
related contracts is not to be considered constitutive or
binding, but,
at
the same
time,
this same
wording
serves as a
principal type
of con-
textual indicator
concerning
that which is constitutive and
binding,
Encyclopedia of Islam,
s.v. Bai',
Schacht
(1965:56) gives
a similar
etymology
for
bay' itself,
"the
clasping.
of hands as the indication of the conclusion of an
agreement."
26
Known as the mundbadha, the muldmasa
(cf. Schacht,
Islamic Law, 147)
and the
hasdh,
which involved the
casting
of stones. See also
al-Murtada,
al-Bahr
al-Zakhkhdr
(Cairo:
Maba'at al-Sa'ada, 1948), 3:297;
al-Shamahi
gives
tarh al-
hasa. Al-Shamahi also refers to
al-Husayn
b. Ahmad
al-Sayaghi,
Al-Rawd al-
Nadir
(Beirut:
Dar
al-Jil, 1989), 3:244-5,
where all three are discussed. See also al-
Shawkani, Sayl al-Jarrdr, 3:126,
and notes on the same
page.
27
Quoting
al-Mawza'i
(d. 1421).
Cf. 'Abd Allah b. Muhammad
al-Hibshi,
Masddir al-Fikr al-Islmi
fi-l-Yaman (Beirut:
al-Maktaba
al-'Asriyya, 1988),176.
28
The
concept
of
nafs
is
complex.
See
generally
the article in EI2 s.v. Nafs. I
have rendered
nafs
as "self," although
it often is translated as
"soul," "spirit,"
or
"life." In
ethnographic studies, nafs
has
figured
as the
opposite
of
'aql, mainly
in a
context of
gender
relations
(e.g., Rosen, Bargaining for Reality;
Lila
Abu-Lughod,
Veiled Sentiments
[Berkeley: University
of California
Press, 1986]).
161
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BRINKLEY MESSICK
namely,
consent. In such
analyses,
a kind of
culturally specific
founda-
tionalism assumes that a bedrock of human
authority
and truth
exists,
located at a remove from
ordinary discourse, inwardly
(in the "heart"
or in the
"self')
in the elemental
'language,'
if that is the
appropriate
term,
of human intention
(qasd, niyya).29
The
analytic
focus here is
upon
a
key activity
of
intentionality, namely,
the formulation of con-
sent;
it is at this level of intention that authoritative
'meaning' (ma'nd,
pl. ma'ani)
is created.
By contrast, consisting
of
expressions, forms,
and
signs (alfdz, siyagh,
and
suwar), ordinary
human discourse is
conceived as a
phenomenon separate
from the internal formulation of
intentionality.
An
important conceptual
divide thus
separates intention,
consent and
meaning,
on the one
hand, and,
on the
other, expressions,
forms and
signs.
The
previously
cited Ottoman
Majalla
formula-
"Decisive in contracts is intentions and
meanings,
not
expressions
and
forms"-is based on
precisely
these
opposed
associations. The
recurrent
interpretive problem
is: how is this authoritative stratum of
intention and
meaning
formation
represented?
How,
in
short, may
it be
known? One contested
solution,
which is
also, by definition,
never
complete
or
secure,
involves the close examination of
ordinary
contractual
language,
its
words,
forms and
signs.
Shawkani
A
key
antecedent of Imam
Yahya's
twentieth
century principle
is found
in the
position
taken in the
early
nineteenth
century by
Shawkani.30
29
In the sale
chapter, qasd frequently
is
used;
in the 'ibdddt
chapters, niyya
is
more common.
According
to one definition the two terms are
interchangeable:
"al-
niyya
is
al-qasd
and
al-irdda,
which are found in the heart of the individual of full
capacity, [and is]
not
simply expression (al-lafz),
nor
simply
faith
(al-i'tiqdd)
or
knowledge,"
from
al-Baydn (a Zaydifiqh
work
by
Ibn Muzaffar, d.
1474),
cited
without the author's name in note 2, by
an unidentified annotator,
in
al-'Ansi, Tdj,
1:38. On Ibn
Muzaffar,
see
al-Hibshi, Masddir,
225-26.
On the
question
of an internal
language
and associated
metaphysical issues,
see
the discussion in Ebrahim Moosa, "Allegory
of the Rule
(hukm):
Law as
Simulacrum in Islam?"
History of Religions
38:1
(1998),1-24, esp.
10-17.
30
Al-'Amrani, Al-Qadd', 229, gives
a version of this imamic
opinion,
but
without use of the word lafz. In a note he
says
that the imam's
position
is that of
the "later" Yemeni
mujtahids, including
al-Jalal
(d. 1673), al-Maqbali (d. 1696),
Ibn al-Amir
(d. 1769),
and Shawkani. On
Shawkani, in addition to
passages
in
Messick, Calligraphic State, and references
provided there,
see now the
important
thesis
by
Bernard
Haykel,
"Order and
Righteousness:
Muhammad 'All al-Shaw-
kani and the Nature of the Islamic State in
Yemen,"
Ph.D. Thesis, Oxford, Faculty
of Oriental
Studies, 1997,
and the recent work of Ahmad
Dallal, "Appropriating
the Past:
Twentieth-Century
Reconstruction of Pre-Modern Islamic
Thought,"
Islamic Law and
Society
7:1
(2000):
325-58.
Haykel
examines these "later" Yemeni
mujtahids
as "Sunna-oriented scholars"
(1997:xviii).
In the
light
of
Haykel's work,
162
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
While,
as we shall
see,
the
previously
cited dictum from The Book
of
Flowers
by
al-Murtada
concerning "expression"
and "custom" encour-
ages,
even
privileges, analyses
of contractual
language,
the
opposing
view held
by
Shawkani and Imam
Yah.ya
does not
give
such
weight
to
this
approach,
at least in
theory.
In his
commentary
work, The
Raging
Torrent
(which, according
to its
subtitle,
runs
rampant through
the
"Gardens of
Flowers," i.e., The Book
of Flowers),
Shawkani cites the
already quoted key phrase
of
al-Murtada,
"with the
expression
of
ownership
transfer,
etc.,"
and
impatiently
restates
(this
is the third
volume of his
commentary)
a
radically simple
view:
We have told
you
that what is decisive is mutual consent and the
satisfaction of the self
(tibat al-nafs);31
and that which is informed of
and indicated
by
them is the shar'l sale. This is the decisive
opinion
in
this, period.32
As he
puts
it later in the same
chapter: "[w]e
have
repeated
this for
you
numerous times ... the sale established in the Book and the Sunna is the
reaching
of mutual consent (huwa husul al-tarddl)."33 In this
perspec-
tive,
contractual
language
has an
entirely
subordinate
role,
or as
Shawkani
says
at the outset of his
chapter, "nothing
is decisive in this
[viz.,
the transfer of
property
from owner to
owner] except pure
mutual
consent and satisfaction of the
self, by any expression (lafz)
that
occurred,
and
by any description
that
happened."34
Whatever its mani-
fest
forms,
contractual
language
is
only
of
consequence
in so far as it
points
to mutual consent and the satisfaction of the self. Insofar as it
does
so,
a 'sale' is constituted in the shar'a.
However,
Shawkani cannot avoid
giving
some minimalist
examples
in his own version of a
linguistic analysis:
If the seller
says,
"I sold this to
you
for thus and
so,"
and the
buyer
takes
it,
and does not
speak
or make a
gesture,
and
they part
the
session
(al-majlis),
this is a shar't
sale,
due to the transfer of the sale
object
from the
ownership (milk)
of the seller to the
ownership
of the
buyer. And, likewise,
if the
buyer says,
"I
bought
this from
you
for thus
the two
Zaydi positions
I discuss should be understood as
involving
these later
"Sunni"
jurists,
as
they
are known in
Yemen,
versus
representatives
of the school's
original
"Hadawi"
positions.
31
The
phrase
tibat
al-nafs
is a
usage
drawn from a hadith. See Shawkani, Sayl
al-Jarrdr, 3:6,
note 1. Paul Dresch, "Keeping
the Imam's Peace: A
Response
to
Tribal Disorder in the late
1950s," Peuples
mediterraneens 46
(1989), 85, gives
a
related
expression, mutdyabat al-nufuis,
used in a 1958 settlement document from
Upper
Yemen.
U2 Shawkani,
Sayl al-Jarrdr,
3:6.
33
Ibid., 3:126.
34
Ibid., 3:6.
163
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BRINKLEY MESSICK
and
so,"
and the seller surrenders it to
him,
and there issued from him
neither word nor
gesture,
and
they part
from the
session,
this is
sufficient.35
However,
this
approach
does not eliminate the
problems
that surround
the
interpretation
of the manifest
representations
of the foundational,
but internal
operations
of "mutual consent" and "satisfaction of the
self." It
merely
includes wider
data, namely, parting
the session and
silence,
in what
might
be
thought
of as a
general analysis
of verbal and
non-verbal contractual
performatives.
Shawkani concludes
by saying
that the
specific
Book
of Flowers-type
of
linguistic
conditions and
methods
concerning
"offer and
acceptance" (to
be discussed
below)
constitute,
in his
view,
undue
"regard
for the
aspect
of
expressions,
and
no consideration should be
given
to this."36
Linguistic analysis
Analyses
of
language, specifically
of
possible
concrete
dialogic
expressions
of the
required
"offer and
acceptance,"
are carried out in
the
lengthier commentary chapters
on sale.
Earlier,
I
quoted
some
example
locutions mentioned
by
a Shafi'i
jurist
and now I turn to al-
'Ansi's The Gilded
Crown,
the
twentieth-century commentary
on The
Book
of
Flowers. As at the
beginning
of
comparable
Shafi'i school
texts,
al-'Ansi contrasts
ordinary language usages
of the lexeme 'sale'
with the technical definitions of the sharf'a
jurists.37
One of these last
is,
"an
undertaking
between two individuals with full
capacity
for
disposal concerning something
licit to
possess
for a known
price
with
two
past-tense expressions."
Each element of this definition is
subjected
to
analysis,
but it is the last
phrase,
the
requiring
of two
reciprocally
uttered
"expressions" (lafzayn),
that
is,
utterances of "offer and
accept-
ance,"
that is
specifically
countered in Imam
Yahya's principle
and
rejected by
al-Shawkani. These two
required "expressions"
are further
35
Ibid.,
3:7.
36
Ibid.
37
Al-'Ansi, Tdj, 2:306,
308-11. Al-'Ansi
begins by addressing
a
special
problem posed by
the words "sale" and
"purchase," al-bay'
and al-shird'. Both are
in the
category
of Arabic nouns that have two
opposite denotations;
in this case
both words can mean "sale" and
"purchase."
Al-'Ansi notes that a resolution to this
problem
at the level of the formal literate
language
is
provided by
reference to
ordinary language usage:
"in the
language (lugha) they [viz.,
the two
words]
are
employed
for the acts of the
buyer
and the
seller," by contrast,
he adds, "custom
(al-'urf)
has restricted
al-bay'
to the act of the seller and al-shird' [and related
forms]
to the act of the
buyer."
164
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
qualified
in the definition as
"past-tense" (mtdiyayn),
which
explicitly
distinguishes "sale,"
as an executed
contract,
from a
type
of future
contract also known to the shari'a
(the
salam
contract).
In another
sense, however,
the
past
moment
pointed
to
by
the contract's
manifestly
expressed
words
might
be the
prior,
internal and determinative moment
of intent formation.38 In this
sense,
the outward
present
of contractual
locution refers to the inward
past
of contractual intent.
Al-'Ansi commences his
linguistic analysis proper
as he
explains
seriatim the seven conditions set forth
schematically
in The Book
of
Flowers
pertaining
to the contract itself (as
opposed
to those that
pertain
to the
contracting
individuals or to the
commodity [mdl]
and the
"sale
object").
The initial four conditions of the contract concern the
language
of the "offer and
acceptance."39
The first of these is the
already
cited
key passage
from The Book
of
Flowers which holds that a
valid sale
agreement
must occur "with the
expression (lafz)
of owner-
ship transfer, according
to custom." After
quoting
the
phrase,
al-'Ansi
gives
his
sample wordings
for such
legal performatives:
"I
sold,
I made
possessor,
I
gave,
I
paid,
I made
over,
for thus and so." Then he
says,
"if he did not
say
'for thus and
so,'
the first
expression
becomes
invalid,
the last a
vow,
and the three in the middle
gifts."
He continues:
Likewise,
if he
[simply] says,
"It's
yours,"
this would be an acknow-
ledgment (iqrdr).
But if he
says,
"for thus and
so,"
it becomes a
sale,
as
opposed
to "I made" and "I
consented,"
since these are not
accompa-
nied
by
the
expression
of
ownership
transfer
(laft al-tamlik)
and the
contract is not valid with
them, except
if
they
are
answers,
with the
meaning
of
"yes,"
as when he
says,
"I sold" or "You
bought
from me"
for thus and
so,
and the other
says
to him "I did" or "I consented." Then
the contract is valid.40
In addition to this discussion
involving
verbs and
expressions
that
would be familiar to Arabic
speakers anywhere,
al-'Ansi
provides
concrete
examples
of
specific colloquial
verbs used in certain sales in
Yemen. These are
specific
to transactions
involving grain,
the essential
agrarian
and commercial
commodity
of the
highlands.
Use of these
verbs
(shdt
and
kil)41
makes contracts valid
since, following
The Book
38
It should be noted that the
marriage
contract is different in this
respect,
inasmuch as it occurs in the
imperative, lafz
al-amr
(cf. Al-'Ansi, Tdj, 2:312).
39 The
remaining
three conditions do not bear
directly
on the
linguistic
analysis. They concern, (5) timing, especially disallowing
future
dealings; (6)
illegal impediments
connected with other
conditions;
and
(7)
the structure of the
contract session
(majlis).
40
Al-'Ansi, Tdj,
2:308-9.
41
Variations derived from the shdt root are found in
my
Ibb town document
165
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BRINKLEY MESSICK
of
Flowers
dictum, "according
to
custom,"
in this
specific sphere, they
convey
the sense of
"ownership
transfer."
The second and third conditions
pertaining
to the "offer and
accept-
ance" lead al-'Ansi to further remarks about
language
and further ex-
amples.42
While the second condition concerns the
"acceptance" alone,
the third is that the
expressions
of the "offer and
acceptance"
must
"mutually correspond" (they
must be
mutatdbiqin).
This third condition
and the
fourth,
to be discussed
below,
were the
specific targets
of
Shawkani's critical remarks about
linguistic analyses. According
to
this third
condition, although
the seller and the
buyer,
the two
speaker-
contracting parties, express
themselves from different
vantage points
regarding
the
property transfer,
their
expressions concerning
the
transaction must be
equivalent. Employing
the basic
conceptual
distinc-
tion between
expressions
and
meanings
discussed
above,
al-'Ansi
says
the
correspondence
should be either "in
expression
and in
meaning,
or
in
meaning
alone." In this strand of
linguistic analysis,
intent continues
to
trump
the outward manifestations of
language.
The
example given
of
correspondence involving
both
wording
and
meaning is,
"If he
says
'I
sold these
things
to
you
for two thousand' and the other
says,
'I
accepted
them for two thousand' or 'I
accepted
the sale' or such." The
example
for
correspondence
in
meaning
alone
is,
"If he
says,
'I sold
this
shop
to
you
for two thousand' and the other
says,
'I
accepted
half
of it for one thousand and I
accepted
the other half for a thousand'."
Variations are then
adduced,
one of which is the case of
co-owning
sellers of a
single property,
each of whom sells half of the
item,
with
the
buyer accepting only
one of their offers. This is
possible,
al-'Ansi
explains,
"inasmuch as each of them
[the sellers]
offered to sell half of
it,
and even if it was not so
worded,
but was here
[what each]
intended
(al-murad)."43 If,
on the other
hand,
each of the two intended to sell the
whole
thing,
the
acceptance regarding
half would not be
legal, again by
no.
222,
which is dated 1920 (in my files).
Al-Hasan b. Ahmad
al-Jalal,
Daw' al-
Nahdr
(San'a': Majlis
al-Qada' al-A'la, 1985), 3:1117, gives laft al-shit and
another
example given by al-'Ansi,
that of
al-qa.da'
in connection with debt
(dayn).
Al-'Ansi also
gives
sulh for debt relations. R. B.
Serjeant
and Ronald
Lewcock,
eds., San'd', An Arabian Islamic
City (London:
World of Islam Festival
Trust,
1983), 593, provide
a
glossary entry
on shd and related forms,
all of which have
pre-Islamic, Himyaritic
antecedents. Kil
may
be derived from
kayl (same glossary,
582).
42
Al-'Ansi, Tdj,
2:309-10.
43 With
regard
to Sanhiri's
analysis
of "ultimate
intent,"
discussed earlier, this
usage might represent something
like a
larger
motive for
engaging
in the
transaction.
166
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
the
principle
of
correspondence
of "offer and
acceptance." If,
in conclu-
sion,
the "offer and
acceptance" correspond
"neither in
expression
nor
in
meaning,"
the sale is not
legal.
The fourth
language
condition set forth in The Book
of
Flowers and
taken
up by
commentator al-'Ansi holds that both the offer and
acceptance
must be "ascribed to the self'
(mu.ddfayn
ild
al-nafs).44
In its
grammatical markings
the
language
used
by
the
parties
must index a
connection with their authoritative
interiorities,
with their selves and
their intentions. Without
initially glossing
this
phrase
from The Book
of
Flowers,
al-'Ansi turns
directly
to an
example
which assumes two
pieces
of
grammatical
information:
(1)
in both the first and second
persons,
the letter
"ta"'
is the final
marking
consonant added to the
stems of
verbs,
here the verbs "to sell" and "to
buy,"
and
(2)
it is the
following
vowel
marker,
the "u"
(or damma)
and the "a"
(orfatha),
placed
on this final
"td'",
that differentiates the first and second
per-
sons. While such vowels
may
be uttered in
speech, they
do not conven-
tionally appear graphically
in the
typically
unvoweled written text. In
the
printed
text of al-'Ansi's
commentary, however,
these
significant
vowels are added to the verbs in
question.
Like
many
other such
illustrations
employed by
the
jurists (usually
without
vowel-markers),
al-'Ansi's
examples
involve a
representation
in written Arabic of
statements
purported
to be in
spoken
or contractual Arabic. Whether
these verbs
actually represent
a
spoken
formal Arabic
(fusha),
which
would be
unlikely
in an actual sale
contract,
or
spoken colloquial
Arabic,
which would not
necessarily
have the
vowelings indicated,
is a
problem,
at least in the first
part
of the
example.
Al-'Ansi
partially
addresses this
problem
in a
qualification
in the second
part.
Al-'Ansi's
positive example
of "offer and
acceptance" wording
that
exhibits this
requisite "ascription
to the self' is:
If the seller
says,
"I sold"-with a damma
["u"]
on the "t"'--and the
buyer,
"I
bought"-with
a damma on
the
"ta'."
Both
verbs, expressing
the
reciprocal past
acts of
selling
and
buying,
are marked with the
appropriate damma,
the "u" of the first
person.
"Ascription"
to the selves of the seller and the
buyer
is achieved
through
formal
grammatical
correctness. The second
part
of this
example
is
negative, illustrating
how this
"ascription"
is not
achieved,
at least in formal
grammatical
terms.
(What actually
is found in this
44
Al-'Ansi, Tdj,
2:311. He uses a term related to that used in
grammar
for the
construct
state,
the iddfa.
167
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BRINKLEY MESSICK
part
of the
example,
which I will not
quote,
is two second
person
verbs
which attribute
legal
acts to the
opposite party.)
In addition to these
possibilities,
al-'Ansi
continues,
the
authority
of
linguistic
custom also
may
be
recognized, according
to which the condition of
"ascription
to
the self' still
may
be achieved:
If there had been
afatha ["a"]
on the " t"' of the
speaker,
it would not
be
valid, except following
the custom in his
language,
which would not
be
prejudicial,
as in the
language
of some of the
regions.
Al-'Ansi notes
parenthetically
that this issue of
customary linguistic
usage
is
analytically
relevant to "all of the
legal performatives
and
contracts"
(sd'ir
al-insha'dt
wa'l-'uqiid). Following
a further cue from
The Book
of Flowers,
he adds that the same effect of
"ascription
to the
self' can be achieved
by
a
variety
of
utterances, including
both the
formally
correct
response, "'yes' (na'am),
or
'iyah'
or
'aah,'
as is the
language
of custom
(lughat al-'urf)."
He
says
that
even,
for
example,
"[i]f
the seller
(al-ba'i) says, [instead
of 'I
sold'],
'I
bought (ishtaraytu)
this for thus and so,' and the
buyer says, 'yes,'
it is sufficient."
Following
such
precarious wording,
al-'Ansi does not
require any
correcting expressions,
and his
summary requirement
for
meeting
this
fourth condition is an
"expression" (lafz)
that is
"past-tense, unambigu-
ous
(sarih)
and ascribed to its
speaker."
Repudiations
To
provide
contrast with their
analyses
of bilateral
contracts,
I now will
consider the
Zaydi jurists' analyses
of the unilateral act. The
legal
domain of
talaq,
or
"repudiation"
of the
wife,
is
equally
reliant on
analyses
of possible utterances. But the situation is different from that
in "sale" and related contracts in that the utterances in
question
do not
take the
reciprocal, dialogic
form of the bilateral
undertaking's
"offer
and
acceptance." Instead,
the utterances evaluated in
chapters
on
"Repudiation"
are all unilateral declarations
by
the husband. More
important, according
to some
opinions, notably
that of The Book
of
Flowers,
in this domain
"expression" (lafz)
can have
independent
weight.
While intent retains a certain
authority
in this
legal domain,
according
to the author of The Book
of Flowers,
in his
comparative
legal study,
The
Overflowing Sea,
repudiation
"cannot occur
simply
with
intention,
rather
expression
is
required."45
45
Al-Murtada, al-Bahr,
3:155.
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
To
implement
this
heightened importance
accorded to
expression,
Zaydi chapters
on
taldq
modeled on The Book
of
Flowers are
organized
around a further distinction.
Returning
to al-'Ansi's
commentary,
now
in his
chapter
on
"Repudiation,"46
we
read, "expression
is divided into
unambiguous (sarlh)
and indirect
(kindya)."
The first
type
of
expres-
sion,
the
unambiguous,
is
spoken
with
knowledge
of its
meaning by
a
fully capable
and
discerning
individual.47 This is
expression
that is
clear and
pure,
the
jurists' equivalent
of
transparent language.
The
associated
intentionality
is
patent, virtually present
in the
expression
itself,
as in al-Murtada's formulation in this connection which refers to
a husband who "intended the
expression unambiguously" (qasada
al-
lafzafi'l-sarih).
Furthermore,
al-'Ansi
comments,
if the individual who
utters such an
expression
"did not intend its
meaning,
the
repudiation
occurs
[nevertheless], by
the intention of the
expression (bi-qasdi
al-
lafzi)." Conversely,
if the
expression
of
repudiation (i.e., "taldq")
is not
spoken,
"but he intended
repudiation
in his heart
alone,
it does not
occur,
due to the absence of the
expression."
Limiting
these
conceptions
of the relation of intent to
expression,
however,
are the
special
words of the
joker,
who-like the
sleeper
who
murmurs his dreams aloud and the coerced
speaker-
recurs as an in-
structive
analytic figure throughout
the
repudiation chapter. Ordinarily,
it is
legally
sufficient that one
simply
utters the
appropriate
letters of the
word
"taldq."
The ideal
performative
models
are,
"You are
repudiated"
(anti tdliq),
"I
repudiated you" (tallaqtuki),
or
"Repudiation upon you"
('alayki al-talaq).48
"I
repudiated"
alone is
insufficiently unambiguous.
Lacking
the
requisite
"intention of the
expression,"
the
murmurings
of
the
sleeper
are
exempted,
as
is,
in a fanciful
example,
the
tongue-tied
individual with a wife named
Tariq
who
replaces
the "rd"' in her name
with a "lam" as he calls out to her. In all such
special
cases intent
retains a
separate authority.
A more technical definition of
expression
that is
"unambiguous,"
cited
by
al-'Ansi from The Book
of Flowers,
is "that which does not
46
Al-'Ansi, Tdj,
2:119-20. Cf. Schacht,
Islamic Law,
116.
47 Another of Imam
Yahya's ikhtiydrdt
raises the issue of differences between
the informed and the uninformed
legal
actor. In his
commentary
on the
ikhtiydr
in
question, al-Shamahi, Sirdt, 44, states that untutored individuals "do not
understand the
meanings
of
expressions (madluldt al-alfdz)."
See
Brinkley Messick,
"Textual
Properties: Writing
and Wealth in a Sharl'a Case," Anthropological
Quarterly
68:3
(1995), 161,
for an
application
of this
ikhtiydr
in a 1948 case
involving
inheritance and endowments.
48
Al-'Ansi,
Tdj,
2:120.
169
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BRINKLEY MESSICK
convey
other than it."49 In this
instance, unitary meaning
is
conveyed
by wording comprising
the letters "td"', "lam" and
"qdf."
Such "un-
ambiguous wording,"
al-'Ansi
reiterates,
"does not
require intention,"
whether it is a
"legal performative
act"
(insha'),
an
acknowledgment
(iqrdr),
or occurs in an act of
calling (nida').
Related
special compound
conceptions,
the
"expression
of the
performative
act"
(lafz al-insha'),
and the
"expression
of the
acknowledgment" (lafz al-iqrdr)
are used
by
al-'Ansi in connection with
repudiation.50
Both such
conceptions
and
"intention of the
expression,"
mentioned
above,
envision a
joining,
in
this
particular legal
domain of the unilateral
act,
of
special
forms of
intention with various forms of outward
expression.
Across the several
specific types
of
possible spoken acts, repudiation
is immediate as the
words are uttered. An
example given
is that of a husband
calling
out to
his wife to
repudiate
her. Even if the husband omits
pronunciation
of
the final consonant
"qdf'
of the word
"taldq,"51
as in some
dialects,
the
repudiation
takes effect with his
words, except
if he is not a native
speaker
of Arabic. Like other
commentators,
al-'Ansi also
provides
examples
of
unambiguous
and therefore
binding
words in Persian.52
It is with the second
category
of
repudiation expression, namely,
"indirect
expression" (kindya), however,
that
examples
of
potential
utterances
proliferate
in commentaries such as al-'Ansi's Gilded
Crown. In the
language sciences,
the term
kindya
refers to a
specific
trope, metonymy,
but in this
legal context,
in a
practical
rhetoric for
lawyers,
the term refers
generally
to allusive or
figurative language
of
several
types, although metaphor (majaz)
is treated
separately.
Another
commentator remarks that "the intention in
[the
use of the
term] kindya
here
[that is,
in the The Book
of
Flowers text
upon
which he is
commenting]
is not the
kindya
of the science of rhetoric ('ilm al-
baydn)."53
The main
point concerning
"indirect
expression"
is
that,
unlike
"unambiguous" locutions,
such
expression
is not
immediately
binding
in and of
itself,
but instead
requires
that a link be established
between
"expression" (lafz)
and
"meaning" (ma'na),
that
is,
with
intent.
49
Ibid., 2:120. Discussion of
expression
classified as sarlh and of
single
meaning
also is carried in the
Zaydi
usul
works, e.g.,
Muhammad b.
Yahya
Bahran,
Matn
al-Kdfil (San'a':
Dar al-Turath al-Yamani, 1991),
28.
50
Al-'Ansi, Tdj,
2:121.
51
By tarkhim,
elision of the final consonant of a name in the vocative.
52
Al-'Ansi, Tdj,
2:121-2. He states that
talaq
can occur in "all
tongues,"
according
to
al-Sayaghi's
Rawd al-Nadir and to the view of Imam
Zayd.
53
Al-Jalal,
Daw'
al-Nahdr, 3:905-6. See also EI2, s.v.
Bayan.
170
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
The basic definition of "indirect
expression,"
cited
by
al-'Ansi
from
The Book
of Flowers,
is "that which
conveys
it and other than it."54 A1-
'Ansi
explains
that for a
particular speaking
individual this involves an
expression
such that "if a member of his
language group
hears it he
would be uncertain as to whether he
[viz.,
the
speaker]
wants to
repudiate,
or
[wants] something
else." That
is,
"indirect
expression"
involves
wording
which is not
specific
to
repudiation. Among
the
examples
offered
are,
"I
separated,"
"I
dismissed,"
"You
(f.)
are free,"
"I have no
wife,"
"Gather
your clothes,"
"Go to
your people,"
"Get on
the road to
your
district," "Marry
someone
else," and, simply,
"Leave!"55 More
elaborate,
oath-like
expressions are,
"You are to me
forbidden like
wine,"
or "like
carrion,"
or "like a
stranger."
"All
these,"
al-'Ansi
concludes,
are
examples
of "indirect
expression
of
repudiation
(kindyat
al-taldq),"
and the associated
principle
is that "if he
[viz.,
the
husband]
intends
by
them
repudiation
then it
occurs,
and if
not, nothing
[occurs]."
Al-'Ansi also notes here that the common
people
(al-
'awamm) customarily
use various
expressions containing
the word
"forbidden"
(haram), and, again,
this amounts to a
binding
"indirect
expression
of
repudiation,"
if
repudiation
is
intended,
and if
not,
nothing.
To all such
linguistic analyses
in the unilateral
sphere
of
repudiation
Shawkani,
once
again,
is
strongly opposed.56
In the course of his
commentary,
after he
quotes
the above-mentioned
phrase
from The
Book
of
Flowers which refers to the husband who "intended the word-
ing unambiguously" (qasada al-lafzafi' l-sar.h),
he offers the
following
scathing
remark:
"[T]his
is one of the
strangest
of
interpretations
and
marvels of
opinion"
(hadha
min
ghard'ib al-ijtihdd
wa
'ajd'ib al-ra'y).
For
Shawkani,
there is no relevant distinction to be drawn here between
expression
that is
unambiguous (sarlh)
and
expression
that is indirect
(kindya),
as
repudiation simply
occurs when it is intended.57
Countering
the
position
of The Book
of
Flowers in
respect
to an
unambiguous
expression
of
repudiation,
Shawkani
writes,
"He who does not intend
the
meaning
of the
wording
is not held to
it,
even if he utters it a
thousand times."58 In the event of
subsequent litigation brought by
the
wife,
if the husband had used an
unambiguous expression
of
repudiation
but claims that he did not intend its
meaning,
Shawkani
54
Al-'Ansi, Tdj,
2:122.
55
Ibid., 2:123.
56
Al-Shawkani,
Sayl al-Jarrdr,
2:343-45.
57
Ibid., 2:345.
58
Ibid., 2:343.
171
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BRINKLEY MESSICK
acknowledges
that it is clear that the husband is
making
an assertion
that runs counter to
appearance (khildf al-zahir), appearance being
the
normal basis for a
judge's ruling.
This is the
situation,
"since he
[viz.,
the
husband]
is
claiming something
which would not have been the act
of those of sound mind in most circumstances." Shawkini concludes,
"But inasmuch as the intent
(al-qasd)
cannot be known
except
from his
perspective,
the
prevailing opinion (al-qawl)
is his statement
(qawl),
together
with his oath." As for indirect
expression,
Shawkani
states,
"Repudiation
occurs on the basis of
every expression
or such like
which indicates disunion
(al-furqa),
whatever it
may be,
inasmuch as
he was
intending
disunion
by
it."
Written intent
Thus
far, my
discussion of
legal
intent has referred
only
to the
problems surrounding
such manifest forms as
spoken
words. A further
layer
of
problems
is
engaged
in
considering
manifestations of intent in
written
representation.
One set of these
problems,
examined
briefly
here,
concerns
writing
in a narrow
sense,
as it is used to
convey
the
expressions
of the
party
or
parties
to
legal
acts. Another set of
problems,
examined
elsewhere,
concerns
writing
in a broader
sense,
as
in the final and
encompassing legal
documents
prepared
after the fact
by
notaries.59
Jurists have a technical view of
writing
itself.
By "writing" (kitdba),
they
refer to
something
concrete and
enduring
and
outwardly
manifest:
[I]t
is
necessary
that it leave a trace
(athar)
which
may
be seen
externally,
and this does not occur unless it is
[inscribed]60 writing,
as
in
writings
on
paper
or boards61 or
stone, etc.,
on which the letters of
the
writing
remain inscribed.
[This may include] writing
with earth or
flour,
or
upon
them.62
This definition of "inscribed
writing" appears
in al-'Ansi's
commentary
chapter
on
"Repudiation."
As with
spoken words,
written
represen-
tations
conveying
the
expressions
of the
party
or
parties
have
very
different
implications
in unilateral as
opposed
to bilateral
legal
acts.
Writing,
in the context of
repudiation,
is
special
because it too is
59
Messick, Calligraphic State,
chs.
11,
12.
60
The bracketed word is from The Book
of Flowers,
the text
upon
which al-
'Ansi is
commenting.
The matn text uses the formulation "inscribed
writing"
(kitdba murtasima).
61
The word
(sing. lawh)
refers to the
writing
boards used
by
students.
62
Al-'Ansi,
Tdj,
2:122.
172
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
associated with unilateral
expression (by
the
husband):
it is the
singly
acting
individual's
proper
or
autograph writing. Writing
in this uni-
lateral context is located
conceptually
within the
previously
mentioned
distinction between
"unambiguous"
and "indirect"
expression.
Extend-
ing
his
categories further,
al-'Ansi
explains
that "indirect"
expression
is
itself of two
types, comprising
both
"expression
and other than
expression" (lafz wa-ghayr lafz),
and the
principle
instance of the
latter,
"other than
expression,"
is
"writing" (al-kitaba).
In
passing,
we have
an affirmation of an
ongoing assumption, namely,
that the term
lafz
has meant
"spoken expression,"
not
just "expression"
as I have thus far
translated it.
Accordingly,
the rubric
ghayr lafz,
which includes "writ-
ing," actually
should be translated as "other than
spoken expression."
Pushing
the
categories
in another
direction,
al-'Ansi
explains
that
expression
in unilateral "inscribed
writing" may
be either
"unambigu-
ous" or "indirect." The
important point
is that with either of these
types
of written
expression, given
the
required intention, repudiation
occurs.
Diametrically opposed
to this "inscribed
writing"
is another
"writing,"
which I would label
traceless,
which has different
implications.
This
traceless
"writing"
is that which occurs
in the
air,
or on
water,
or
stone,
on a surface not
manifesting
the trace
of the
writing
and which is
impossible
to
read,
either
immediately
or
[because]
the first
part
of a letter
disappears
before the second
part
is
begun.63
With this traceless
writing,
the
important legal
conclusion is that
"repudiation
does not occur with
it,
even if he so intended."
Viewed across the
chapters
of the law
books, however, writing
in
the context of
repudiation represents
a
specialized variety,
an
interesting
exception.
It is
special
because it is associated with unilateral
expres-
sion
(by
the
husband), whereas, by contrast, writing
in the contractual
domains based on the "offer and
acceptance"
is connected with the
complexities
of bilateral
expression.
If the unilateral situation is that of
the
singly acting
individual's
proper, autograph writing,
the bilateral
one is that of
writing
in the
space
between self and other. As a conse-
quence,
whereas
writing
is classified as a form of "indirect
expression"
in
repudiation,
in the contractual domains
writing, together
with all
other forms of
expression,
must be
"unambiguous" (sar.h).
Employing
the distinction between unilateral and bilateral under-
takings
al-'Ansi
explains
that inscribed
writing
must be
63
Ibid.
173
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BRINKLEY MESSICK
"unambiguous" (sarlh)
in
marriage
and in sale because it is a contract
between him and other than him. There is no "indirect
expression"
(kindya)
in them
[viz.,
the bilateral
contracts],
and no
[associated]
reliance on intention in
them,
as
opposed
to
repudiation
and oath
(yamin),
where there is "indirect
expression" (kinaya)
because
they
involve
expression (laft)
between him and his self
(nafs),
and his intent
has
authority
in them
[viz.,
the unilateral
acts].64
In bilateral
contracts,
while
speech
once
again
is envisioned as the
normal medium for the "offer and
acceptance,"
these
reciprocal
expressions
also
may
take written form.
Specifically,
an
"acceptance"
is
legal
in
writing, although
it is
necessary
that it is
"unambiguous"
(sarfh), as, again,
"there is no indirect
expression (kinaya)
in the
transactions."65
Following
the order of
presentation
in The Book
of
Flowers, however,
al-'Ansi
mainly
treats
writing later,
where it is
associated with
special
media such as the
gesture (ishira)
and with the
circumstances of such
special
actors as the blind and those with
speech
and
hearing impairments.
All such individuals can contract with
gestures
and with
writing.66 Earlier, however,
al-'Ansi had referred to
writing
as "more manifest than
gesture,"
and he further
explained
that,
whereas
gestures
are not
permitted
from the
unafflicted, writing
is.67
The Book
of
Flowers itself
specifically
mentions
writing
in its "Sale"
chapter only
after a
passage
on the unusual situations of the
capable
minor and the slave
acting
as
agents
in a contract.
Sunni connections
Differences of
position
within the
Zaydi
school
concerning
the
analysis
of intent mirror those that existed
among
the Sunni schools. Here I refer
to two other
distinguished Zaydi jurists,
al-Hasan b. Ahmad al-Jalil
(d.
1673)
and Muhammad b. Isma'il
al-Amir,
known as Ibn al-Amir
(d.
1769),
who are associated with al-Shawkani as "later" Yemeni
mujta-
hids.68
Al-Jalal,
the author of The
Light of Day,
a
seventeenth-century
commentary
on The Book
of Flowers,
introduces one of a
pair
of
opposed concepts
that can be used to
distinguish
the
positions
of the
Hanafis,
Shafi'is and Hanbalis.69 As he addresses the
relationship
between the manifest level of
ordinary language
and the internal
64
Ibid., 2:26, quoting al-Baydn, by
Ibn Muzaffar
(d. 1474).
65
Ibid., 2:309,
cf. 318.
66
Ibid., 2:315-8.
67
Ibid., 2:27.
68
See note 28 above.
69
Al-Jalal,
Daw'
al-Nahdr,
1118. Cf. al-Murtada, al-Bahr, 3:297.
174
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
'language'
of
intentionality,
al-Jalal
highlights
the two
opposing
positions. Citing
the same
problematic
utterance that later is
repeated
as
an
example
in the
twentieth-century commentary by al-'Ansi,
al-Jalal
says
that one view holds that such a verbal
exchange
would not
constitute a sale contract for the
Zaydis.
The basic
issue,
as al-Jalal
puts it, introducing
the
key concept,
concerns whether the
"wordings
of
contracts are a
report (khabar) concerning
what is in the self
(nafs)."
Resonant with
meanings
across several of the traditional Islamic
disciplines,
the term khabar
(pl. akhbdr)
is a
key synonym
for the
reported
tradition,
the
hadith,
while
among
the
grammarians
it means
"predicate."
One
opposite
of the related
term,
"informational"
(khabarl),
is the term
"performative"
or "creative"
(inshd'i).
Using
these
contrasting
notions one can
say,
for
example,
that the
non-binding
fatwd
of a
mufti
is "informational" while the
binding ruling
of a
judge
is
"creative."
On the bottom half of the same
page
in
my printed
edition of al-
Jalal's
commentary,
his
phrase, "report (khabar) concerning
what is in
the self
(nafs),"
is
picked up
in the
supercommentary (hashiya) by
the
eighteenth-century jurist
Ibn al-Amir. It is Ibn al-Amir who makes the
specific
connection with several of the Sunni schools.
Concerning
the
analytic problem centering
on
expression
in
contracts,
Ibn al-Amir
states
generally
that "the
jurisprudents
differ as to the status of these
forms
(siyagh);
the Hanafis are of the
opinion
that
they
are
reports
(akhbdr), [while]
the Hanbalis and the Shafi'is hold that
they
are
performative
acts
(inshda't),
not
reports."
Ibn al-Amir then turns to a
distinction
put
forward
by
the famous Hanbali
jurist,
Ibn
Qayyim
al-
Jawziyya,
whom he
quotes:
Forms
(siyagh)
have a dual relation. One involves their external
connections,
and it is in this
respect
that
they
are
specifically
"performative",
as the Hanbalis and the
Shafi'is
have held. Another is
their connection to the intention
(qasd)
of the
speaker
and his will
(irdda),
and it is in this
respect
that
they
are
"reports"
for what was
intended,
as the Hanafis have said.70
In bilateral
contracts, then,
the
opposed
views of the
Zaydi jurists
on
the relation of
legal expression
to intention
may
be situated with
respect
to some of the Sunni schools. Since The Book
of
Flowers and modem
commentator al-'Ansi hold that such manifest
legal expressions
are
70
Muhammad b. Isma'il al-Amir,
Minhat al-Ghaffdr (San'a': Majlis al-Qada'
al-A'la, 1985),
1118. Ibn
Qayyim al-Jawziyya
also is
quoted
on this
subject
on
p.
903.
175
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BRINKLEY MESSICK
necessary
and
require linguistic analyses, they
are close to the Shafi'is
(also
an
indigenous
school in
Yemen),
who consider such
expressions
to be
"performative
acts." As a
consequence,
their foundationalism,
their
emphasis
on
anchoring legal analyses
in a bedrock of
intent,
is
less marked.
By contrast,
al-Shawkani and Imam Yah
ya (as elaborated
upon by al-Shamahi),
who do not
require specific expressions
for such
bilateral
legal
acts and
reject linguistic analyses,
are close to the
position
of the Hanafi school which
regards
such
expressions
not as
performatives
but as
"reports"
of intent. In their
proximity
to the Hanafi
position,
these Yemeni
jurists
can be said to share this Sunni school's
relatively strong
foundationalism.71
These
opposed analytic categories
are relevant as well to the discus-
sion of unilateral acts such as
repudiation (taldq).
In this
legal
domain,
the
position
of al-Murtada in The Book
of
Flowers and of commentator
al-'Ansi is that certain
expressions
alone are
performative
acts,
without
a
necessary
connection to
intent,
and that
specially
tailored
linguistic
distinctions and
analyses
are therefore relevant. In this domain of the
unilateral act their
position
becomes anti-foundational.
However,
this
position,
that
"unambiguous expression"
in
repudiation
itself constitutes
a "performative
act,"
is contested
by
other commentators on The Book
of Flowers, including,
as noted
earlier, al-Shawkani,
who are consistent
in their foundational
analyses. Al-Jalal,
for
example,
holds
that,
together
with such bilateral contractual
language
as "I sold" and "I
married,"
the unilateral statement "I
repudiated"
is not a
"performative
act"
(inshd'),
but
rather, again,
a
"report (khabar) concerning
what is in
the self
(nafs)."72
Al-Jalal refers to the
analyses
of the
grammarians
as
he maintains that the word for
'repudiation'
itself
might
be
ambiguous,
as it
may
also mean to restrict the wife to the house or to restrain her
from
making
transactions.
Outside/inside
As noted at the
outset, questions
of an
historically specific
form of
"inwardness" are involved in these
juristic analyses
of
legal
intent. The
relevant
metaphor
of the human interior in this
legal
discourse locates
processes
of intent formation
specifically
in the human
"heart,"
which
71
In
Anglo-American
terms
(in
criminal
law)
the former
position might
be seen
as
"objective,"
the latter
"subjective."
In a
striking convergence
of
terminology,
Ronald Dworkin
argues
in another connection that a statement of intention is
"mainly
a
report
rather than a
performance" (cited
in
Crapanzano, Serving
the
Word, 379,
n.
17).
72
Al-Jalal,
Daw'
al-Nahdr, 904.
176
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INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS
is
part
of the
larger
interior realm of the
"self,"
the
nafs,
with the
overarching
construct
being
the shar'l
subject.
Just as this
legal
individual must be
distinguished
from the western
legal subject,
so too
must the
respective concepts
of "inwardness" be
distinguished.
One
way
that these
legal analyses
of intent are
distinguished
is that
they
are
cross-cut
by
another set of
categories
which also are
applied
to the
relations between the outward or manifest as
opposed
to the inward or
concealed. The terms in
question
are
zahir
and
batin, and,
in the
legal
domain,
a fundamental
principle
holds that
analyses
are to be con-
ducted on the level of the outward or
manifest,
the
zdhir,
and not on
that of the bdtin. This rule has
many implications
in
Zaydi legal
practice, including
the allocation of the
litigation
roles of
plaintiff
and
defendant,
with the
plaintiff being
the
party
whose claim runs
against
the
apparent
situation
(al-zdhir).73
Two
compound usages
have been
mentioned here in
passing,
the
first,
zdhir
al-khitdb,
used
by
al-
Shamahi,
describes a
legal approach
to the manifest sense of
discourse,
and the
second, khildf al-zahir,
used
by Shawkani,
refers to
something
contrary
to the
appearance
of
things, appearance (al-zdhir) being
what
is meant to
guide
the
judge
in his
ruling.
Despite
their doctrinal differences
concerning intent,
both
Zaydi
positions
must
operate interpretively
with the available forms of
manifest
expression,
that
is,
on the level of the zdhir. One
position
sees
these manifest
expressions
as
quasi-
or
completely
sufficient
legal
performatives,
either
presuming
a link to intent (in bilateral
acts)
or not
requiring
such a link (in some unilateral
acts),
while the other
position
sees them
merely
as "indications" of intent. Where the first mounts a
full
linguistic analysis,
the second conducts a
wide-ranging analysis
of
signs.
A
comparative
observation is that this basic
legal
orientation to
the outward and
manifest,
to the
zahir,
serves to restrain the sort of
"depth" analyses
that
grew up
in
"subjective"
western
legal interpre-
tation. In the Islamic tradition there was no
legal psychology;
the
classic
expert
called to court was the
physiognomist,
the
specialist
in
reading
outward
physical signs
as indications.
Conclusion
In human
legal
relations determinative
meaning-formation
is situated
by
the
jurists
at a crucial remove from the lived
sign
world of
language
73 For a discussion
specific
to the Shafi'i
school,
see Messick, Calligraphic
State,
176-7.
177
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BRINKLEY MESSICK
and other forms of
expression. Analyzing
mutual consent in a situation
involving
at least two
participants
to an
undertaking requires
an effort
to understand
dialogically
constituted
meaning. Analytically
different is
the situation of the unilateral declaration. Uncluttered
by
a
response
from an interlocutor or
by
the latter's
intentions,
the
intentionality
of the
unilateral
legal
act
could,
for
some,
come closer to
being directly
manifested in the various forms of
expression.
Given the assumed
gap
between forms of
expression
and
intention, legal analyses
amount to
attempts
to erect
bridges
from the accessible to the inaccessible. The
interpretive
work of
evaluating spoken
and written
expression,
whether
these are understood as
"performatives"
or
"reports," represents
such a
bridging
effort.
Mikhail Bakhtin has written
generally
of the "authoritative word"
that "we encounter it with its
authority already
fused to it."74 In the
analytic
view of the
Zaydi jurists, meaning
creation occurs at the level
of
intent-formation,
and it is
only
in the
theory
of the unilateral act that
this authoritative
intentionality can,
for
some, approach being
"fused"
with the
spoken
word.
Otherwise,
the "authoritative word" exists
only
in the
deeper,
or
prior 'language'
of human
intentions,
in relation to
which the external
language
of contractual relations
is, according
to
one
view,
epiphenomenal.
The limit case
here,
I
suggest,
is the divine
word,
in
which, by definition,
there is no
separation
of
intentionality
and
expression.
It is
paradigmatically
the Word of
God,
in the
Qur'an,
that is encountered
by
Muslims "with its
authority already
fused to it."
As with the
divinity, however,
the source of
legal authority
in human
intentions is "located in a distanced zone."75
Ultimately,
neither know-
ledge
of God
Almighty
nor of the intentions and
meanings
located in
the interiors of other humans are
fully
attainable and ascertainable
by
interpreters.
But these sources of authoritative
meaning,
these locales of
truth,
remained the identified
objects
of
interpretive
efforts.
Meaning
conceived of as constituted in "a distanced zone" activated and anima-
ted a distinctive
legal semiotics,
a
practical lawyer's
science of manifest
signs,
that was
integral
to an
interminable, always incomplete
and also
always
contested human
pursuit
of
understanding.
74
Mikhail
Bakhtin, The
Dialogic Imagination (Austin: University
of Texas
Press, 1981),
342-43.
75
Ibid., 342.
178
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