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Ḥaḍāna

(3,563 words)

Author(s): Linant De Bellefonds, Y.
, (A.), ḥiḍāna , in the technical language of the fuḳahāʾ , is the right to custody of the child, a ramification of guardianship of the person which though exercised as a rule by the mother or a female relative in the maternal line may in certain circumstances devolve upon the father or other male relative. This institution is of very great importance in judicial practice because of the numerous conflicts to which the subject gives rise, particularly where the spouses are ‘‘separated” and above all where the cause of separation is repudiation of the wife. A.—In theory this right of custody…

Hiba

(1,868 words)

Author(s): Linant de Bellefonds, Y.
, gift inter vivos, transfers the ownership of a thing during the lifetime of the donor, and with no consideration payable by the donee. The term ṣadaḳa is used to designate charitable donation, which does not require offer and acceptance and which, moreover, is always irrevocable. As for the term hadiyya , this is preferably applied to the donation of a movable object, given as a present; according to certain S̲h̲āfiʿīs it would be valid even without acceptance on the part of the donee. Gift is a contract. It is formed, say the scholars, by īd̲j̲āb wa-ḳabūl , by offer…

Fāsid wa Bāṭil

(4,647 words)

Author(s): Linant de Bellefonds, Y.
, In the terminology of the Ḥanafī jurists, bāṭil denotes the act which lacks one of the elements essential for the existence of any legal activity. Buṭlān embodies the notion of nonexistence, and the act which lacks one of these elements which are considered fundamental is, in effect, deemed non-existent. If, while fulfilling the necessary conditions for its formation, a legal act does not observe the conditions of validity stricto sensu required for its perfection ( awṣāf , sing, waṣf , quality), it is then said to be fāsid , or vitiated and therefore null. But this nullity ( fasād

ʿIdda

(3,157 words)

Author(s): Linant de Bellefonds, Y.
, from the verb ʿadda , “to count, enumerate” (days or menstruations), Arabic term for the duration of widowhood or, rather, the period of abstention from sexual relations imposed on a widow or a divorced woman, or a woman whose marriage has been annulled, before she may re-marry. In pre-Islamic Arabia the institution is thought to have been unknown with regard to a divorced woman. The Ḳurʾānic provisions on which it was based were not always respected during the early years of Islam (J. Schacht, Origins , 181) although at a very early date the jurists gave …

Ḳad̲h̲f

(524 words)

Author(s): Linant de Bellefonds, Y.
(a.), slanderous accusation of fornication ( zināʾ [ q.v.]), or of illegitimate descent; in this latter case, it amounts to accusing the mother of fornication. The guilty party is punished by a fixed penalty ( ḥadd ) of 80 lashes, laid down by the Ḳurʾān (XXIV, 4). A slave guilty of the same crime therefore receives only 40 lashes, on account of the general principles of fiḳh . According to the majority of fuḳahāʾ , ḳad̲h̲f only occurs if the expressions used by the slanderer expressly relate to the fornication or illegitimate descent of the person who is slandered. The Mālikīs alone consider as ḳ…

Ḍarūra

(873 words)

Author(s): Linant de Bellefonds, Y.
, necessity (also iḍṭirār ), in works of fiḳh has a narrow meaning when it is used to denote what may be called the technical state of necessity, and a wider sense when authors use it to describe the necessities or demands of social and economic life, which the jurists had to take into account in their elaboration of the law which was otherwise independent of these factors. I. The state of necessity, whose effects recall those of violence, does not result from threats expressed by a person, but from certain factual circumstances which may oblige an individual, f…

Istiṣḥāb

(510 words)

Author(s): Linant de Bellefonds, Y.
, evokes, etymologically, the idea of an implied connection between a present situation and a previous one. In the vocabulary of the fuḳahāʾ , it designated the principle by which a given judicial situation that had existed previously was held to continue to exist as long as it could not be proved that it had ceased to exist or had been modified. In general, the institution has not been well understood; it has been regarded as the S̲h̲āfiʿī equivalent of istiḥsān and istiṣlāḥ [ q.v.]. But istiṣḥāb is not a source of objective law and besides, to the extent t…

Kafāla

(1,122 words)

Author(s): Linant de Bellefonds, Y.
( ḍamān in all but the Ḥanafī school), aninstitution corresponding to some extent to the surety-bond in Western juridical systems, with the difference that the fuḳahāʾ distinguished two types of surety-bond. On the one hand there is the type for which the surety ( kafīl ) is binding to secure only the appearance in court of the debtor ( aṣīl or makfūl ); this, known as the kafāla bi’l-nafs, is an institution peculiar to Muslim law. There also exists the kafāla bi’l-māl , by means of which the surety stands as a pledge to the creditor ( makfūl lahu) that the obligation of the principal debtor…

K̲h̲āl

(365 words)

Author(s): Linant de Bellefonds, Y.
(a.), pl. ak̲h̲wāl , maternal uncle, whether a full, consanguineous or uterine one. In such a strongly patriarchal civilisation like that of Islam, the status of such an uncle necessarily entrained a certain degree of inferiority compared with that of the paternal uncle, ʿamm (pl. aʿmām ). The latter is considered as one of the ʿaṣaba , and is high up in their hierarchy; he has a right to the whole of the succession if there are no heirs entitled to fixed shares or ʿaṣaba with a prior claim to himself. The maternal uncle, on the other hand, never inherits in Mālikī law; even if…

Iḳrār

(4,169 words)

Author(s): Linant de Bellefonds, Y.
, in fiḳh , means an acknowledgement, either judicial or extra-judicial. The Muslim jurists define iḳrār as iʿtirāf , “confession” (Ibn Ḳudāma, Mug̲h̲nī , v, 137). The institution, as it has been built up by the jurists of Islam, is however much more flexible, more comprehensive and more independent of the exact anterior reality which it is considered ¶ to reveal, than the corresponding institution of the western systems, in the sense that it is used not only to reveal or to confirm a previously existing right, but also often in practice to produce a n…

Kafāʾa

(821 words)

Author(s): Linant de Bellefonds, Y.
(a.), a term which in common usage signifies at one and the same time equality, parity and aptitude, but in the terminology of fiḳh designates equivalence of social status, fortune and profession (those followed by the husband and by the father-in-law), as well as parity of birth, which should exist between husband and wife, in default of which the marriage is considered ill-matched and, in consequence, liable to break-up. In fact, in fiḳh, kafāʾa works in a single direction and protects only the wife who must not marry beneath her station; it m…

Iḳāla

(636 words)

Author(s): Linant de Bellefonds, Y.
, an agreement which cancels, wholly or in part, a previous agreement between the same parties. The question is treated by the fuḳahaʾ in the chapter on sale; the authors devote to it long expositions, because of the favour with which fiḳh regards all methods of mitigating the obligatory nature of a contract. As is said in a ḥadīt̲h̲: “For him who annuls ( aḳāla ) a sale which the other party regrets [having concluded], God will annul his sins on the day of the Resurrection”. When Muslim jurists consider the subject of sale, they ask the…

ʿIwaḍ

(422 words)

Author(s): Linant de Bellefonds, Y.
, exchange value, compensation, that which is givén in exchange for something. In a very broad and generally accepted sense, the word is used in works of fiḳh to denote the counterpart of the obligation of each of the contracting parties in onerous contracts which are called “commutative” ( muʿāwaḍāt , from the same root as ʿiwaḍ ); that is, contracts which necessarily give rise to obligations incumbent upon both parties. Thus in a sale, the price ( t̲h̲aman ) and the thing sold are each the ʿiwaḍ of the other. Understood in this sense, compensation must be exactly determined and,…

Inkār

(173 words)

Author(s): Linant de Bellefonds, Y.
, “denial”, the opposite of iḳrār [ q.v.]; it is said that there is inkār when a person who is summoned by law to acknowledge a debt denies that he owes it; this inkār should not be confused with the refusal ( radd or takd̲h̲īb ) of the beneficiary of an iḳrār to agree to the said acknowledgement [see iḳrār ]. Faced with a debtor who refuses to recognize his debt or his obligation, the petitioner has the right to use any of the methods of proof which the law allows him and, in particular, can make him swear an oath, yamīn al-munkir , which many Muslims in former times prefer…

Istiʾnāf

(206 words)

Author(s): Linant de Bellefonds, Y.
, from istaʾnafa (to recommence, to renew), means in modern Arabic appeal, because the case is examined again from the beginning when brought before the court of appeal. In classical fiḳh the word is used with this sense of recommencement with regard to the ʿibādāt , the religious duties, especially prayer. Istiʾnāf (the Mālikīs call it ibtidāʾ ) occurs when the entire prayer, which has been interrupted by the occurrence of a ritual impurity, ḥadat̲h̲ [ q.v.], has to be begun again. In certain circumstances the fuḳahāʾ decided that the continuation ( bināʾ ) of the…

Id̲h̲n

(874 words)

Author(s): Linant de Bellefonds, Y.
(a.), very general term, meaning simply “authorization”. We shall concern ourselves here only with fiḳh , but, even within this restricted field, shall examine only (a) the authorization necessary to enable certain types of incapable persons (i.e., those who are partially incapable) to conclude isolated legal transactions, when such transactions could, according to circumstances, either cause the position of the incapable person to become worse or better; and (b) the general authorization…

Istibrāʾ

(1,533 words)

Author(s): Linant de Bellefonds, Y.
, the period of sexual abstinence imposed on an unmarried female slave whenever she changed hands or her master set her free or gave her in marriage. Literally, istibrāʾ means to make sure of the “freedom”, that is the “emptiness”, of the womb. In fact, this period of abstinence was imposed to avoid confusion over paternity since—as there is hardly need to mention—female slaves, especially young ones, were nearly always the concubines of their masters. Nevertheless, the majority of fuḳahāʾ often lost sight of the point of this institution and imposed istibrāʾ in hypothetical cases whe…

Iḥyāʾ

(1,855 words)

Author(s): Linant de Bellefonds, Y.
means, in the language of the fuḳahāʾ , “bringing to life”, with the precise meaning of putting a piece of land to use. The word is in fact nearly always associated with mawāt lands, that is, land which is uncultivated or merely lying fallow, which belongs to nobody and which is, in general, far from centres of population. The appropriation of This land by an individual entails his first putting it to use. The writers base This method of acquiring property by putting it to use on a statement by ʿUmar and on ḥadīt̲h̲s which they trace to the Prophet and in which it is said in particular: “ Mawāt

Iḳrār

(3,800 words)

Author(s): Linant de Bellefonds, Y.
, en fiḳh, désigne l’aveu, qu’il soit judiciaire ou extrajudiciaire. L’ iḳrār, disent les juristes musulmans, c’est l’ iʿtirāf, la « confession » (Ibn Ḳudāma, Mug̲h̲nī, V, 137). L’institution, telle que l’ont structurée les légistes de l’Islam, est cependant beaucoup plus souple, plus comprénensive, plus indépendante de l’exacte réalité antérieure qu’elle est censée révéler, que l’institution correspondante des systèmes occidentaux, en ce sens qu’elle ne sert pas seulement à faire apparaître ou à confirmer un droit prée…

ʿIwaḍ

(396 words)

Author(s): Linant de Bellefonds, Y.
, contrevaleur, compensation, ce qui est remis en échange d’une chose. Dans une acception très large, le mot est employé dans les ouvrages de fīḳh pour désigner la contrepartie de l’obligation de chacun des contractants, dans les contrats onéreux dits «commutatifs» ( muʿāwaḍāt, même racine que ʿiwaḍ), c’est-à-dire les contrats qui font naître, nécessairement, des obligations à la charge des deux parties. C’est ainsi que, dans la vente, le prix ( t̲h̲aman) et la chose vendue sont, respectivement, le ʿiwaḍ l’un de l’autre. Pris dans ce sens, la compensation doit être exactem…
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