If you’ve read any classical text on Islamic jurisprudence, you must have noticed that the examples given to explain the reasoning and the structure of usul are disproportionately about divorce or freedom of slaves. For example, you’re studying the complex categorization of cause and effect relationships and trying to grapple with the subtle hairsplitting inter-school subtleties, yet as if its not frustrating enough, you find the author operationalizing it all in the context of divorce or freedom of slaves, of all the other interesting contracts in the world. Demotivating and downright frustrating.
So can we — the new generation enthusiasts of fiqh — replace these examples with more relevant and contemporary ones such as those about commercial dealings for example?
As with any problem, it’s important to know why the problem exists in the first place before attempting to solve it. So we know if we need to solve it and then how best to solve it. Why were topics such as divorce and freeing slaves such popular workhorse examples for explaining the nuances of legal theory among jurists? Is it bcs they were ‘men’ after all? or the culture in their time was so messed up so the men had nothing better to do than think of mind-spinning ways to divorce their wives and then begging scholars to undo their stupidity? or slavery was so common that it was unavoidable?
None of the above. The answer has to do with legal theory itself.
Briefly, divorce and freeing of slaves are (probably the only) contracts which are most flexible and impactful than other contracts. Remember the two keywords: impactful and flexible.
By flexibility I mean that:
- They can occur both unconditional(munajjaz) or conditional (mu’allaq),
- right now (hall)or bound on a future date (mudaf),
By being impactful I mean that:
- they give an immediate effect (e.g. transfer of ownership. To clarify, if i gift somebody sth, the contract isnt complete until he takes possession of the gift, but in sale contract, as soon as offer and acceptance are out of the mouth, ownership of the sold item transfers from seller to buyer. Point? sale contract is NOT impactful. But divorce and freeing slaves are.)
- are non-rescindable. (regardless of the other party’s knowledge or acceptance. e.g. An offer in a sale contract can be withdrawn before the other party accepts but a divorce can not be withdrawn even if the husband regrets the minute he pronounced it. So again, divorce/freeing slaves is a lot more impactful and undoable than a sale contract.)
Hence, it’s rare to find a contract that fulfills all four criteria mentioned above. Let’s take a sale contract for example. It’s impactful as it gives immediate effect and is non-rescindable but its NOT flexible. Hence, you cannot have future sale contract. It must be now and unconditional. Take lease, it can be contracted to take effect in future but it cannot be contingent upon a condition. Same goes with waqf, its impactful i.e. immediately effective and non-rescindable, but not fully flexible i.e. a waqf can be delayed to a date in future but can not be contingent upon a condition.
Considering all this, it makes sense to use divorce and freedom as examples. Bcs they are unique in that they could be deployed as a convenient analytical tool to demonstrate any conceivable subtlety of a legislative exercise. Simply bcs they are applicable in almost any scenario. Substituting these examples with more contemporary ones may be difficult, if not impossible.
But we can try, can’t we?
