When is a 'Slight Violation Pardonable'?: An Inquiry to a Legal Maxim in Islamic Law

• Author: Omar Aloudah
• Position: King Faisal University
• Pages: 597-645

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

whEn is a “slight violation

PardonaBlE?”

AN INQUIRY INTO A LEGAL MAXIM IN ISLAMIC LAW

Omar Aloudah

King Faisal University

In Islamic nancial transactions, there appears that a “slight violation is par-

donable” as one can easily nd in a range of Islamic nancial transactions, such

as agency (wakala), lease (ijara) and partnership (sharika), which are crucial to

the practices of Islamic banks and other nancial institutions that invest their

capital according to Islamic law (Shari’ah). In that regard, this article explores

the vision of Shari’ah in dealing with transactions involving slight violations due

to unauthorized actions of one of the contracting parties. Specically, this article

denes the meaning and binding authority of the above maxim alongside the

criteria of judging an action as “slight.” In the course of the discussion, juristic

cases will be demonstrated before presenting their relevant legal rulings. e

germane views of the four schools of Islamic law (Hana, Maliki, Sha’i, and

Hanbali) will be consulted. Analysis and interpretation of related Islamic texts

will be completed. Views of the leading contemporary jurisprudential Islamic

councils will be presented, pertinent criticisms and discussions, if any, will be ex-

posed, and reference to the preponderant view will be included. To that end, the

article focuses on the foundations for issuing Islamic rulings with regard to perti-

nent, yet debatable situations and incidents in order to study some applications

connected to the legal maxim in question, which constitutes the working prin-

ciple for some Islamic banks, and the extent of their compatibility with Islamic

law. Furthermore, it investigates the legal ruling of approaching and investing in

institutions that do not comply with the rules and principles of Islamic law, for

instance, dealing in usury (riba) on a small scale.

Keywords: Islamic Law, Financial and Banking Law, Comparative Law, Private Law,

Law and Religion.

IV Indonesian Journal of International & Comparative Law 597-645 (July 2017)

598

Aloudah

I. INTRODUCTION

In many of today’s Muslim countries, Islamic law (or Shari’ah ) has be-

come one of the primary sources for the enactment of many State spon-

sored (positive) laws, ranging from public to private laws.1 Concerning

the latter, Islamic law has directly inspired the modern development of

the complexities of the Islamic nancial sector in general, and Islamic

banks in particular.2 To understand the subject better, Islamic law is

generally agreed to be sourced from the Qur’an, the primary sourc-

es, the compilation of the written words of God;3 Sunnah, “the actions

and sayings of the Prophet Muhammad”;4 Ijma’, consensus;5 Qiyas, “the

deduction of legal prescriptions from the Quran or Sunnah by ana-

logic reasoning;”6 and Ijtihad, individual reasoning.7 Nevertheless, it is

important to note that the diverse schools of jurisprudence have con-

ceived Islamic law dierently, which is oen as a response to their pe-

1. See e.g., S I: A C O   L

S  T M C  P  P (Jan Michiel

Otto ed., 2010); C  I C: B U-

  C  (Rainer Grote & Tilman J. Röder eds, 2012). Also see

T O H  I L (Anver M. Emon & Rumee Ahmed

eds. 2015).

2. T K, I  M: T E P  I-

 (2004). In one study, it has been observed that “the Qur’an . . . does

contain approximately 500 injunctions of a legal nature (20 of which are con-

cerning economic issues).” M K. L  L M. A, I

B 21 (2001).

3. T S Q: A N T  C (Seyyed Hos-

sein Nasr et al. eds, 2015).

4. Sunnah, in T I W: P  P, O I S-

 O (John L. Esposito ed., 2017), http://www.oxfordislamicstudies.

com/article/opr/t243/e332 (last visited May 29, 2017).

5. Wael B. Hallaq, On the Authoritativeness of Sunni Consensus, 18 I’ J. M-

 E S. 427-454 (1986).

6. Qiyas, in T O D  I, O I S O-

 (John L. Esposito ed. 2017), http://www.oxfordislamicstudies.com/arti-

cle/opr/t125/e1936 (last visited May 29, 2017).

7. Wael B. Hallaq, Was the Gate of Ijtihad Closed?, 16 I’ J. M E

S. 3-41 (1984).

599

When is a “Slight Violation Pardonable?”: An Inquiry into a Legal Maxim in Islamic Law

Aloudah

culiar contexts.8 us, there are varied legal viewpoints regarding how

to answer the prevailing legal questions. In the process, the scholars

of Islamic law seem to view that this diversity of opinion (doctrinal

plurality) might be essential for the adaptability of Islamic law to the

ever-changing challenges that it faces.9

In light of the above situation, it is clear that Islamic law is not

a one-time project. is article is intended to contribute to the

advancement of the conceptual understanding of the Islamic legal

maxim a “slight violation is pardonable” as it relates to the issues arising

from an agency contract (wakala), lease contract (ijara) or partnership

contract (sharika). To be specic, this study is a pursuance of research

completed on the applications of the legal maxim that a “slight violation

is pardonable”, which has been studied in the areas of acts of devotion

(‘ibadat), types of sale (bu y o’), endowments (waqf), wills (wasaya),

marriages (nikaah), divorces (talaq), blood-money (diyyat), penal

codes (hudood), dietary codes (at’imah ), oaths (ayman) and litigation

(qadaa’).

e legal maxim “slight violation is pardonable” has been briey

discussed in a number of regional scholarly works concerned with legal

maxims, focusing on its origin, meaning, other relevant legal maxims,

and some of its ramications. However, no thorough juristic analysis

or comparison between the varying stances held by dierent legal

schools has come to light based on an in-depth survey of the database

of the Scientic Research Deanship located in Riyadh, Saudi Arabia,

the Central Library at Imam Muhammad bin Saud Islamic University

located in Riyadh, Saudi Arabia, the library of King Faisal University

located in Hasa, Saudi Arabia and the King Fahd National Library

located in Riyadh, Saudi Arabia. e only published scholarly works

found so far were six pieces of research at the Higher Judicial Institute

(al-ma’had al-’aali lil qadaa’) located in Riyadh, Saudi Arabia.10

8. Paul R. Powers, e Schools of Law, in T A R C

 I L 41-55 (Peri Bearman ed., 2016).

9. See Bernard Weiss, e Madhhab in Islamic Legal eory, in T I

S  L: E, D  P 1-9 (Peri Bear-

man, Rudolph Peters & Frank E. Vogel eds, 2005)

10. See, Abdullah bin Sulaiman Al-Obeid, al-tatbiqaat al-qhiyya li qaa’edat al-ya-

sir mughtafar  al-zakah wa al-sawm wa al-hajj (Juristic Applications of the

legal maxim “slight violation is pardonable” in the book of Zakah, Fasting and