OPERATING PRINCIPLES FOR CONTRACTS IN ISLAMIC LAW: CONSENT (RIḌĀ) IN ḤANAFĪ JURISPRUDENCE

Authors

  • Dr. BRIAN WRIGHT Zayed University

Abstract

The principle of “freedom of contract” forms the basis of modern Western contract law and historically allowed jurists to break away from formal requirements. Alternatively, observers often characterize Islamic law as formalistic, without a general principle permitting parties the freedom to enter contracts beyond the boundaries of a specific form. This article analyzes a concept in the Islamic legal tradition, that of riḍā (consent). Focusing on the Ḥanafī school and using the textual analysis method to place significant texts from the school in chronological order, it traces how riḍā developed beginning with its initial appearance in the Holy Qurʾān and the works of early jurists through Ottoman and modern Egyptian approaches to contract theory. The article argues that, during the post-classical period, riḍā became an operating principle that Ḥanafī jurists used to challenge the formalism that dominated legal discussions during the formative and classical periods, paving the way for the modern concept of freedom of contract in the Muslim World. The article concludes that, within contemporary legal systems, riḍā can be understood as a useful general concept for the construction of contracts, so long as it is firmly placed within the moral limits of the Sharīʿa. Modern legal systems should take advantage of this principle, using it to move beyond bureaucracy to create a more flexible law of contracts.    

 

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Published

2022-06-30

How to Cite

Dr. BRIAN WRIGHT. (2022). OPERATING PRINCIPLES FOR CONTRACTS IN ISLAMIC LAW: CONSENT (RIḌĀ) IN ḤANAFĪ JURISPRUDENCE. Hamdard Islamicus, 45(2). Retrieved from https://hamdardislamicus.com.pk/index.php/hi/article/view/266