EARLY JURISTIC APPROACHES TO THE APPLICATION OF ḤIYAL (LEGAL DEVICES) IN ISLAMIC LAW

Abstract

A precise demarcation separating ḥiyal from normal application of law has remained challenging. The majority of juristic trends are seen to categorise ḥiyal into permissible and impermissible types. Out of four categories of ḥiyal, juristic difference is found only with regard to one, where a permissible avenue is employed for attaining an unlawful end. This highlights that there is a large area of ḥiyal where there is near unanimity on acceptability. Despite the apparent laxity perceived of Ḥanafī jurists with regard to ḥiyal, they have limited the employment of ḥiyal to justifiable purposes only. The debate on ḥiyal could essentially be reduced to the juristic difference on the relevance and significance of intent in contracts, as upheld by Ibn Ḥajar al-ʿAsqalānī.