intent in islamic law

Indexing the Self: Intent and Expression in Islamic Legal ActsAuthor(s): Brinkley MessickSource: Islamic Law and Society, Vol. 8, No. 2 (2001), pp. 151-178Published by: BRILLStable URL: http://www.jstor.org/stable/3399208 .

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INDEXING THE SELF: INTENT AND EXPRESSION IN ISLAMIC LEGAL ACTS*

BRINKLEY MESSICK

(Columbia University)

Abstract

This is a discussion of the theory of intent in Islamic law. In an extended example, I focus on the doctrinal views of Zaydi school jurists from Yemen, but I also indicate that the issues and the analytic distinctions characterize the Sunni schools as well. As in western law, ascertaining intent is fundamental to applied Islamic legal analyses in shari'a courts, in matters ranging from contracts to criminal cases. My discussion here, however, is limited to the doctrinal theory of such intent-based legal analyses, about which the Muslim jurists, including the Yemeni jurists of my extended example, hold divergent opinions. Following the Yemeni jurists in their analyses, I consider the relation of intent and manifest expression, including words and writings, across the different domains of bilateral and unilateral acts.

TO EXAMINE A THEORY OF LEGAL INTENT is also to touch upon a number of important related matters, and I want to mention several of these at the outset. As in western law, the Islamic conception of legal intent is predicated upon what Charles Taylor, in his Sources of the

Self: The Making of the Modern Identity (Harvard University Press, 1989) refers to generally as concepts of "inwardness." In Taylor's account, the historical development of ideas about the human interior, subjectivity and the self are fundamental to the advent of the modern western individual. Although narrower in scope, my discussion of legal intent in Islamic law also involves distinctive conceptions of human "inwardness" and these, in turn, pertain to a different history of the self and the individual. Although we are not yet in a position to imagine for

* Research in Yemen was supported by the Social Science Research Council and by Fulbright. An early version of this paper was presented at a conference on "Juridical Technologies: Making Persons and Things," at the University of London, in December, 1999. I appreciate the detailed comments of organizer Martha Mundy and a first reading by Baber Johansen. It was then presented at the Workshop on "The Legal Person in Islamic Law," organized by Bernard Haykel and David Powers at Cornell University in September, 2000. I especially appreciate the detailed comments of discussant Ossama Arabi and observations by Aaron Zysow. I have revised the paper based on instructive comments from members of the Executive Board of Islamic Law and Society and an outside reader. I want to express my particular appreciation for the sustained efforts of David Powers, as both interlocutor and editor.

? Koninklijke Brill NV, Leiden, 2001 Islamic Law and Society 8,2



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this individual anything like Michel Foucault's genealogy of the western subject, the conceptions and problems elaborated by the Muslim

jurists concerning processes of intent represent essential materials for such a project. Islamic law is known for its marked "individualistic"' character and the specific dimension of the Muslim individual I focus on here is this legal person, who I refer to as the "shar'i subject."

The most important legal issues raised in the doctrine on intent center on its role as a foundation of legal authority and on associated problems concerning the aims and means of legal interpretation. Ascertain-

ing intent is fundamental to shari'a court rulings in matters ranging from contracts to criminal cases.2 What is ultimately at stake in such

1 E.g., Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 4.

2 I demonstrate this in detail in my book in preparation, which concerns shari'a court cases from mid-twentieth century imamic Yemen. My findings, which center on lengthy and formal evidential processes, are different from those of Lawrence Rosen, who has examined the place of intent in contemporary Moroccan courts. See his Bargaining for Reality (Chicago: University of Chicago Press, 1984), 52-56; idem, "Intentionality and the Concept of the Person," in Criminal Justice, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1985), 52-77; idem, The Anthropology of Justice: Law as Culture in Islamic Society (New York: Cambridge University' Press, 1989), 51-53; and idem, The Justice of Islam: Comparative Perspectives on Islamic Law and Society (New York: Oxford University Press, 2000), 76-77, 118, 144-45. Rosen also has edited an important comparative volume, Other Intentions: Cultural Contexts and the Attribution of Inner States (Santa Fe: School of American Research Press, 1995), which includes his own chapter, "Have the Arabs Changed Their Mind? Intentions and Discernment of Cultural Change," 178-200. I endorse Rosen's overall view of the significance of the study of intent: "In order to understand the development and application of the concept of intentionality in any legal system it is indispensable to place this concept in the larger context of the cultural definition of the person" (Rosen 1985:53). I also endorse his caution about the associated problem of the comparative study of the individual: "We can see an emphasis on the individual and mistakenly equate it with the western notion of individualism, of a self-directed and self-fashioning person whose inner, psychic structure generates a self that is, whatever its overt manifestations, deeply and truly private" (Rosen 1989:53). Rosen is not concerned with the doctrinal issues behind legal intent, which are the subject of the present article, and he treats intent in court as a matter of interpreting broader social and cultural information rather than presented evidence. According to Rosen (2000:77), the Moroccan judge reads an individual's "state of mind" by acquiring an understanding of his or her "social background, connections, and modes of negotiating obligations." He continues, "It follows that for the Arabs another's intentions are regarded as readily available to discernment and do not constitute a separate domain hidden from human view." He quotes a Moroccan judge as follows: "If I question people, if I find out who they are and what they have done, I can always tell if they are lying, I can always tell their intent (niya)" (2000:77; cf. 1989:52, 1984:53). These findings may be compared with the approaches of Anglo-American judges who "treat certain forms of outward behavior as conclusive evidence of the existence of mental states or impute to an individual the mental state that the average man behaving in a given way would have had" (H.L.A. Hart, Essays in Jurisprudence and Philosophy [Oxford:

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analyses of intent is the constitution of shar'i subjects, together with their properties, rights and obligations. Employing specifically Islamic understandings of human interiority and of the self, these doctrinal views on intent are crucial components of the legal theory of the shar'i subject and, by extension, where this law is applied, they are formative of the identities and worldly relations of such subjects. However, legal analyses of the intent-based meanings underpinning human acts also are structured by a foundationalism of varying degrees that locates the site of authoritative meaning-generation internally, within the self, and thus beyond direct observation. As is true in western analyses of such phenomena as "original intent" and "motive,"3 the interpretive problem for Muslim jurists is one of attempting to know that which is defined as essential and yet, by its understood nature, inward and inaccessible. The contested solutions to this interpretive problem involve the study of manifest signs and forms of legal expression, including, but not limited to, individuals' spoken words and writings.

It is recognized that conceptions of intentionality figure importantly in Muslim approaches to acts in general, and to religious acts in particular. One indication of this general significance of intention in relation to acts is the opening hadith in the authoritative collection of al- Bukhari: "Works are rendered efficacious only by their intention" (innama al-a'mdl bi'l-niyya). This famous hadith appears in other canonical collections as well and, according to Wensinck,4 whose translation this is, its placement in al-Bukhari indicates that it serves as something of a "motto" for his whole collection. As in this hadith, the Arabic term in question, niyya, commonly is associated with "works" in general, but it is perhaps best known as the key term for "intent" in "ritual acts" ('ibdddt), such as prayer. Schacht states generally that "a fundamental concept of the whole of Islamic religious law, be it concerned with worship or with law in the narrow sense, is the niyya (intent)."5

Clarendon, 1983], 96). Early twentieth century disputes concerning statements of intent to worship, among the Gayo of Sumatra, are analyzed in John R. Bowen, "Modern Intentions: Reshaping Subjectivities in an Indonesian Muslim Society," in Politics and Religious Renewal in Muslim Southeast Asia, ed. Robert W. Hefner and Patricia Horvatich (Honolulu: University of Hawai'i Press, 1997), 157-81.

3 Some of the interpretive possibilities are suggested by Stanley Fish, Doing What Comes Naturally (Durham and London: Duke University Press, 1989) and Vincent Crapanzano, Serving the Word: Literalism in America From the Bench to the Pulpit (New York: The New Press, 2000), 279-303.

4 El2 s.v. Niyya. This article treats intent exclusively in the domain of the 'ibdddt.

5 Schacht, Islamic Law, 116-18. A key discussion of intent may be found in

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But what is known of the analytic place of intent with respect to "law in the narrow sense?" Recent studies concerned mainly with the early and late, that is, the classical and modern Hanafi school of Islamic legal interpretation, have raised issues surrounding intent. In his work on tenth to twelfth century Hanafi jurists of Transoxania, Baber Johansen contrasts two analytic "spheres" of legal exchange, the "commercial" and the "symbolic" or "social."6 With respect to the former, Johansen follows Hanafi terminological usage; the latter is his own term for a sphere that remains unlabeled for these jurists. One of several basic distinctions Johansen observes between these two spheres is that whereas legal acts within the sphere of "commercial" exchange involve analyses based exclusively on intent, excluding formalism (p. 77), those within the "social" sphere, including contracts such as marriage, involve "a strict formalism with very little place for intent" (p. 78). Thus, for example, "In the marriage contract the formula once spoken is binding and produces its legal effects" (p. 77). Toward the end of his discussion, however, Johansen makes a remark that brings matters forward to the changes and codifications of the modem period. In the twentieth century, he writes, "something that has happened unnoticed for most of the observers is the abolition of the formalism of social exchange" (p. 102).

In two recent articles, Oussama Arabi7 has examined intent, first, in connection with early twentieth century amendments to the path- breaking codification of shari'a-based civil law in the late nineteenth century Ottoman code known as the Majalla, and, second, in the work of the Arab world's great mid-twentieth century law code drafter, 'Abd al-Razzaq al-Sanhiri. In the first article, Arabi addresses the problem of "freedom of contract," which, he assumes, is not permitted in Islamic law. Seeking, as a modernist legal project, to enhance the possibility of freedom of contract, late Ottoman reformers turned away from the impediments they saw in the standard Hanafi sources and invoked the Hanbali jurist Ibn Taymiyya (d. 1328), who is quoted by Arabi as follows:

Y. Linant de Bellefonds, Traite de Droit Musulman Compare', 3 vols. (Paris: Mouton, 1964).

6 Baber Johansen, "The Valorization of the Body in Muslim Sunni Law," Princeton Papers: Interdisciplinary Journal of Middle Eastern Studies 4 (1996): 75- 117.

7 Oussama Arabi, "Contract Stipulations (Shurut) in Islamic Law: The Otto- man Majalla and Ibn Taymiyya," International Journal of Middle East Studies 30:1 (1998), 29-50; idem, "Intention and Method in Sanhuri's Fiqh: Cause as Ulterior Motive," Islamic Law and Society 4:2 (1997), 200-23.

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The principal rule in contracts is the consent of the parties (al-aslfi'l- 'uqud ridci al-muta'dqidin), and the legal effect is what the parties obliged themselves contractually [to undertake].... Since God does not command for commerce except mutual consent (tarddi), mutual consent validates commerce (al-tarddi huwa al-mubih li'l-tijdra)...; thus if the parties agree together the contract is valid, except if it contains what God and His Prophet forbid such as trading in wine and similar [forbidden] objects.

According to Arabi, "whereas the Hanafis rule that mutual consent by the parties to the terms of contract is only a necessary condition of

validity and not sufficient to validate the transactions," the adoption of Ibn Taymiyya's different analytic view would amount to "a substantial advance for freedom of transaction in Islamic Law" (p. 41).

In his second article, Arabi articulates a widely held assumption in the following terms: "In Islamic law the centrality of the inner world of the Muslim subject shows foremost in the law of worship ('ibdddt)" (p. 211), or, as he states in his opening line, "The weight of intention in Islamic law is unevenly distributed between ritual law ('ibdddt) and the law of worldly transactions (mu'dmalat)" (p. 200). In Arabi's view, one of Sanhuri's modernist aims was to find or construct notions of ultimate intent, or cause, in Islamic law similar to those operative in modern French law. Arabi maintains that although the four Sunni schools of law agree on the importance of the specific subjective condition of consent (ridd', tarddi) in pecuniary transactions (Johansen's "commercial" exchanges), they differ on the legal weight of larger intention or motive (qasd, niyya), which Arabi also refers to as "ultimate," "ulterior" and "driving." Part of Sanhuri's effort was to trans- cend the limitations of the Hanafi position, characterized by Chafik Chehata in the following terms: "Motive is so little taken into consideration that the sale of an object is clearly considered to be valid even if the ends it serves are illegal."8 Seeking a viable notion of ultimate motive, Sanhuri's investigation thus turned away from the Hanafis and toward the juristic positions of the Maliki and Hanbali schools, which he understood as closer to modern western law.

Zaydl positions

The case of the Zaydi school jurists of Yemen is different in that it concerns a debate about intent conducted largely within the confines of

8 Chafik Chehata, Theorie Ge'nerale de l'Obligation en Droit Musulman Hanefite (Paris: Editions Sirey, 1969 [1936]), 70, cited in Arabi 1997:201.

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the school. Although the Zaydis are a Shi'i school, their larger frame of reference is the four Sunni schools, which typically appear in their comparative citations. Although the asserting of position persisted well into the twentieth century, the Zaydi debate was not "modernist;" unlike either the late Ottoman jurists or Sanhfiri, the Zaydi debate did not involve an explicit dialogue with ideally perceived western legal models such as ultimate intent or freedom of contract.

The Zaydi jurists may be divided into the adherents of two positions. These are illustrated by the controversy concerning the specific type of intentionality, namely, the mutual consent of the parties, found in bilateral contracts, a topic I will examine in greater detail below with reference to the contract of sale. Simply stated, while both sides agree on the ultimate, contract-creating authority of mutual consent, they differ about the import of specific contractual expressions by the parties, typically involving such means as spoken words or writings. One side in the debate is represented by the Zaydi school's authoritative fifteenth-century law book, The Book of Flowers, by Imam Ahmad b. Yahya b. al-Murtada, who died in 1436.9 In the twentieth century, the positions of this early work were developed and extended in what may be the last of many commentaries upon it (and the first written for print publication), a four-volume book called The Gilded Crown, by Ahmad b. Qasim al-'Ansi, who died in 1970.10 The basic position of the side of the debate associated with al-Murtada and al-'Ansi is that various sorts of linguistic analyses are required of the contract language, including attention to the dialogic character of the reciprocal locutions in a bilateral undertaking. The opposed view is represented by Muhammad 'All al-Shawkani (d. 1834), notably in his critical commentary on The Book of Flowers called The Raging Torrent.1 In the 1920s, a concise principle (ikhtiyar) embracing a similar view was laid down by the ruling Zaydi imam, Imam Yahya Hamid al-Din (d. 1948), which was then commented upon in a treatise by 'Abd Allah al-Shamahi.12 This opposed position, held by al-Shawkani and Imam Yahya (as elaborated

9 Ahmad b. Yahya al-Murtada, Kitdb al-Azhar fi Fiqh al-A'imma al-Athar (Beirut: n.p., 1972).

10 Ahmad b. Qasim al-'Ansi, Al-Tdj al-Mudhhab li-Ahkdm al-Madhhab, 4 vols. (San'a': Dar al-Hikma al-Yamaniyya,1993 [orig. 1938-47]). A brief biography of al-'Ansi is in Muhammad Zabara, Nuzhat al-Nazar (San'a': Yemeni Studies Center, 1979),125.

11 Muhammad b. 'All al-Shawkani, al-Sayl al-Jarrdr al-Mutadaffiq 'ald Hadd'iq al-Azhdr, 4 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 1985).

12 'Abd Allah al-Shamahi, Sirdt al-'drifin ild idrdk Ikhtiydrdt Amir al- Mu'minin (San'a': Maba'at al-Ma'arif, 1356 A.H.), 6-10.

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upon by al-Shamahi), scorned linguistic analyses of contractual

language and advocated a radically pure analysis based exclusively on "indications" of intent, whatever they might be, including silence.

As I will discuss later, matters could be simpler when it came to unilateral acts, such as a man's repudiation of his wife. Absent the

dialogic complications of contracts, an individual's words could be taken, for some, as an accurate index of his intent and, in this domain, words alone could have binding authority. Matters were more

complicated, however, when acts were expressed in written form.

Expressions

According to law book chapters on Sale, a basic characteristic of this contract form is that the transaction occurs on the basis of reciprocal engagements by the buyer and seller. These are conventionally translated as "offer" and "acceptance," although the examples that follow show that these translations are inexact. The "offer and acceptance" (ijdb wa-qubul) is a doctrinal formulation used to refer to the actual

language used by the parties. The law books give examples of such

expressions. For instance, an early jurist of the Shafi'i school, al- Nawawi (d. 1277), who is studied in Lower Yemen, writes of the contract of sale that "its condition is an offer such as 'I sold to you' or 'I made you possessor' and an acceptance such as 'I bought' or 'I became possessor' or 'I accepted"'.13 In the Shafi'i school such dia-

logues of past-tense14 statements are necessary for binding contracts and, as a consequence, the school's commentators analyze numerous

examples of possible locutions. In the Zaydi school, according to The Book of Flowers, the requisite

binding reciprocal statements of "offer and acceptance" should occur "with the expression of ownership transfer, according to custom" (bi-

13 Yahya b. Sharaf al-Nawawi, Minhdj al-Tdlibin (n.p.: Dar Ihya' al-Kutub al- 'Arabiyya, n.d.), 39.

14 I should make explicit my choice in translating these contractual verbs, and other examples to come, in the past tense. In Arabic, verbs in this tense have a "past" form and are analyzed this way by the Arab grammarians. For the western Arabist, however, the grammatical category for this tense is known as the "Perfect," and in such contexts the preferred translation for what I have rendered as "I sold" would be a modified present or "performative" form, such as "I hereby sell." I have rendered these verbs in the past tense in English in an attempt to follow the Islamic jurists, for whom marking the completion of the legal act is a central analytic feature. Secondarily, the English notion of a "performative" verb form and present tense translations may confuse the main legal issue (introduced later in this essay), namely, whether such expressions are "performative" acts or not.

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lafzi tamllkin hasab al-'urfi).15 Among Zaydi jurists, this key formulation stands for one side in the debate concerning the relative

significance in bilateral contracts of words and intentions. This notion of "expression" (lafz, pl. alfdz), used in this passage

from The Book of Flowers, also is at the center of Imam Yahya's twentieth century principle on the significance of language in bilateral contracts. As noted, the Imam's principle follows al-Shawkani in

taking an opposite approach to the view represented by The Book of Flowers. Such imamic principles (ikhtiydrdt, also known as ijtihaddt) were designed to guide shari'a court judges of the realm in their

handling of actual cases. To this end, a list of these brief principles was

posted on the wall of the imamic-era Appeal Court. With the characteristic concision of such ikhtiydrdt, Imam Yahyai's principle states:

Expressions (alfiz) are not conditions in sale, that is, in the offer and acceptance, or in lease [another bilateral contract-BM], since the crux (mandt) of authority is mutual consent (al-tarddi) regarding all that is indicated.16

Although the Imam himself said nothing further on the topic, this

principle, one of his thirteen original ikhtiydrdt issued soon after he assumed rule over the highlands following the demise of the Ottoman

Empire in 1918, is the first to be taken up in the later commentary devoted to them by al-Shamhli.17 Following his initial rendering of the imam's principle as a line of verse, al-Shamahi commences an extended

prose gloss. In this commentary, which I now follow at some length, al-Shamahi claims that the imamic position is close to those of several Sunni schools, including Shafi'is such as al-Ghazzali and al-Nawawi; to that of Malik, the eponym of the Malikis, who is quoted ("bay' [the sale contract] is contracted with all that the people consider 'sale' to

15 Al-Murtada, Kitdb al-Azhdr, 143. 16 I have slightly different prose versions of this ikhtiydr from several sources,

one published (Rashad Muhammad al-'Alimi, Al-Taqlldiyya wa'l-Haddtha fi al- Nizam al-Qdnuin al-Yamani [San'a': Dar al-Kalima,1989], 258) and two in untitled manuscript versions (by 'Abd al-Rahman b. 'Ali al-Haddad, who died in 1922, and by Muhammad b. Yahya b. al-Mutahhar). I also have two versions in verse, by al-Haddad and by al-Shamahi, Sirdt, 6. I translate the prose version I obtained from al-Mutahhar which contains the added parenthetical comment, "that is, in the offer and acceptance." In a post-revolutionary rendering of this ikhtiydr, Muhammad Isma'il al-'Amrani (Nizam al-Qadd' fi al-Isldm [San'a': Dar al-Jil, 1984], 229) also refers to "the legality of sale and purchase and the offer and acceptance."

17 Al-Shamahi, Sirdt, 6-10. See also al-'Ansi, Taj, 2:454n, which indicates the specific location of this imamic ikhtiydr within the chapter on "Sale" in the The Book of Flowers. In his note al-'Ansi also gives a concise gloss, which is nearly an exact excerpt from al-Shamahi (p. 6).

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be"); and also to that of the Hanafis, including the late nineteenth-

century Ottoman Majalla, the first quasi-modern code, and also the official law of Ottoman Yemen in the fifty year period up to 1918.18 Al-Shamahi refers in passing to a principle established in the opening, general "legal principles" section of the Ottoman Majalla.19 Although he does not quote it, the third of these general principles begins, "Decisive in contracts is intentions and meanings, not expressions and forms..."20

Sale and lease first are associated by al-Shamahi with all the types of "transactions" (mu'amalat) which involve some form of exchange. He states that, according to the position taken by Imam Yah.ya, in such transactions neither the particular legal "forms" (siyagh) nor the

"expressions" (alfdz) of the agreement constitute conditions. "Rather," al-Shamahi continues, using the language of the Imam's opinion, "the crux (mandt)21 in implementing a sale or in canceling it is the consent (rida) of the exchangers and their having parted consenting." I suggest that the center of the interpretive problem, however, is that this consent is seated internally, specifically, as al-Shamahi notes, in the human "heart."22

The existence, or not, of "consent," or, more precisely, of "mutual consent" (al-tarddl), and thus of the legality of the transaction, the existence of the property rights entailed and the shar'i subject identities created, may be established, al-Shamahi explains, through an examination of the "manifest meaning of the discourse" (zdhir al-khitdb), or

through a "sign" or "indication" (amdra). This determination involves

any available avenue of communication, "any way we can learn of the

18 Al-Majalla, Arabic translation (Istanbul, 1888). See Brinkley Messick, The Calligraphic State (Berkeley: University of California Press, 1993), Chapter 3, for a general discussion.

19 These principles were adapted with modifications from the sixteenth-century jurist Ibn Nujaym. See Linant de Bellefonds, Droit Musulman Compare, 1:125.

20 Text: al-'ibra fi'l-'uqud li'l-maqdsid wa'l-ma'dni id li'l-alfdz wa'l- mabdnl.... al-Majalla, 11. The translation in Linant de Bellefonds, Droit Musul- man Compare, 125, leaves out "meanings" (ma'dan). The preceding text, principle 2, is more general. It is quoted (from al-Mahasini's Sharh) in Arabi, "Intention and Method in Sanhiri's Fiqh," 211, n.29, as: "Actions [al-umur] are judged by their aims [maqdsidiha]: this signifies that the ruling regarding an action is a function of the aim-maqsud-of that action."

21 The term is used by al-Shawkani, Sayl al-Jarrdr, 3:6, in his commentary on the chapter on sale in The Book of Flowers, and it also is used in Zaydi usuil al- fiqh.

22 Qalb, a key term in the Islamic understanding of the human interior. See Messick, The Calligraphic State, 87, for memorization "on the surface of the heart" as a form of internal inscription in classical instruction. See also the general article in EI2 s.v. Kalb.

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occurrence of consent, by any method we perceive it, whether by an act or an expression." The point for al-Shamahi is to attempt to establish "consent to the exchange" and the indication of "giving and taking" by means of any variety of "contextual indicator" (qarina).23 In such an analysis, "the expressions (alfdz) which they [viz., the parties] stipu- lated are only one of the contextual indicators." A basic tension in this argument nevertheless centers on the existence and the precise import of such expressions, including any contractual language, and the extent to which they may provide the most important modality of contextual evidence.

The significance of specific words such as "sale" is explored as al- Shamahi turns to the original (asl) sources on the matter, including both Qur'anic passages and hadiths. Here he analyzes what is known of prevailing custom ('ada, 'urf) in both the pre-Islamic and the early Islamic era. Citing other well-known works of Zaydi jurisprudence, al- Shamahi characterizes "commerce" (al-tijdra) and "sale" (al-bay'), as Marcel Mauss himself might have, as involving "something customary to [all] existence, namely, the exchange of equivalents," and also, as "the basis upon which the human world is built." Al-Shamahi's contemporary, al-'Ansi, the modem commentator on The Book of Flowers, states that the received consensus about "sale" is that it is "among the greatest means of inducement to work in this worldly life, and among the greater causes of civilization and culture."24

According to hadiths cited by both al-Shamahi and al-'Ansi, "sale" (bay') in the Prophet's era was a conventional contractual means for transferring privately owned property, or milk, from one individual to another. In the law, al-Shamahi notes, when a principle established by the Prophet is not provided detail by him, the necessary detail is to be determined with reference to prevailing custom. Pre-Islamic custom, current also in the time of the Prophet, was for contracting parties to employ conventional forms or signs (suwar), including the grasping of hands-acts at the etymological origins of some of the key legal terms, including "sale"25-before separating from one another, and these

23 J. N. D. Anderson, Islamic Law in Africa (London: Frank Cass, 1970), 372, defines qarina as "context, indication, circumstantial evidence." See also Wael B. Hallaq, "Notes on the term Qarina in Islamic Legal Discourse," Journal of the American Oriental Society 108 (1988), 475- 80.

24 Al-'Ansi, Tdj, 2:307. 25 Concerning the term safqa, which is not mentioned by al-Shamahi, Schacht,

Islamic Law, 145, notes, "The conclusion of the contract is essentially informal; only the literal meanings of certain technical terms, such as safqa, 'striking hand upon hand,' for concluding a contract, reflect former symbolic acts." In the Shorter

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provided the requisite contextual indicators (qard'in) of consent. The

Prophet affirmed some of these forms and disallowed others. He

specifically forbad three types of transactions which involved uncer-

tainty, unwarranted risk and other problematic conditions.26 By contrast, among those forms he authorized were "the expression of sale and purchase (lafz al-bay' wa'l-shira')."

The Qur'an (2:275) then is quoted: "God sanctioned sale (bay')." Al- Shamahi explains,27 "This Qur'anic verse is clear and unproblematic [to interpret], because 'sale' is intelligible in the [Arabic] language and known to the Arabs. It was their customary practice, and their world was based on it." The fact that the Qur'an does not refer to the forbidden transaction types but limits itself to bay' and related forms "is an indication (dalll) that its expression (lafz), and related expressions signifying its meaning, are to be positively considered in [evaluating] the implementation of the contract." For each of the differing types of related contracts (sale, lease, pawn, gift, etc.) consent is associated with a specific pattern of value-transfer, and this is indicated, al-Shamahi notes, through signs (suwar), including the use of the specialized contract name, or noun (ism). As he states, however, these represent "only the voiced word (al-qawl), which translates what is in the self

(nafs)." If the "heart" is the specific metaphorical locus of intent, the

nafs, the "self,"28 is the key general category of Muslim legal "inwardness."

In and of itself, then, the specific wording employed in sale and related contracts is not to be considered constitutive or binding, but, at the same time, this same wording serves as a principal type of contextual indicator concerning that which is constitutive and binding,

Encyclopedia of Islam, s.v. Bai', Schacht (1965:56) gives a similar etymology for bay' itself, "the clasping. of hands as the indication of the conclusion of an agreement."

26 Known as the mundbadha, the muldmasa (cf. Schacht, Islamic Law, 147) and the hasdh, which involved the casting of stones. See also al-Murtada, al-Bahr al-Zakhkhdr (Cairo: Maba'at al-Sa'ada, 1948), 3:297; al-Shamahi gives tarh al- hasa. Al-Shamahi also refers to al-Husayn b. Ahmad al-Sayaghi, Al-Rawd al- Nadir (Beirut: Dar al-Jil, 1989), 3:244-5, where all three are discussed. See also al- Shawkani, Sayl al-Jarrdr, 3:126, and notes on the same page. 27 Quoting al-Mawza'i (d. 1421). Cf. 'Abd Allah b. Muhammad al-Hibshi, Masddir al-Fikr al-Islmi fi-l-Yaman (Beirut: al-Maktaba al-'Asriyya, 1988),176.

28 The concept of nafs is complex. See generally the article in EI2 s.v. Nafs. I have rendered nafs as "self," although it often is translated as "soul," "spirit," or "life." In ethnographic studies, nafs has figured as the opposite of 'aql, mainly in a context of gender relations (e.g., Rosen, Bargaining for Reality; Lila Abu-Lughod, Veiled Sentiments [Berkeley: University of California Press, 1986]).

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namely, consent. In such analyses, a kind of culturally specific foundationalism assumes that a bedrock of human authority and truth exists, located at a remove from ordinary discourse, inwardly (in the "heart" or in the "self') in the elemental 'language,' if that is the appropriate term, of human intention (qasd, niyya).29 The analytic focus here is

upon a key activity of intentionality, namely, the formulation of consent; it is at this level of intention that authoritative 'meaning' (ma'nd, pl. ma'ani) is created. By contrast, consisting of expressions, forms, and signs (alfdz, siyagh, and suwar), ordinary human discourse is conceived as a phenomenon separate from the internal formulation of

intentionality. An important conceptual divide thus separates intention, consent and meaning, on the one hand, and, on the other, expressions, forms and signs. The previously cited Ottoman Majalla formula- "Decisive in contracts is intentions and meanings, not expressions and forms"-is based on precisely these opposed associations. The recurrent interpretive problem is: how is this authoritative stratum of intention and meaning formation represented? How, in short, may it be known? One contested solution, which is also, by definition, never

complete or secure, involves the close examination of ordinary contractual language, its words, forms and signs.

Shawkani

A key antecedent of Imam Yahya's twentieth century principle is found in the position taken in the early nineteenth century by Shawkani.30

29 In the sale chapter, qasd frequently is used; in the 'ibdddt chapters, niyya is more common. According to one definition the two terms are interchangeable: "al- niyya is al-qasd and al-irdda, which are found in the heart of the individual of full capacity, [and is] not simply expression (al-lafz), nor simply faith (al-i'tiqdd) or knowledge," from al-Baydn (a Zaydifiqh work by Ibn Muzaffar, d. 1474), cited without the author's name in note 2, by an unidentified annotator, in al-'Ansi, Tdj, 1:38. On Ibn Muzaffar, see al-Hibshi, Masddir, 225-26.

On the question of an internal language and associated metaphysical issues, see the discussion in Ebrahim Moosa, "Allegory of the Rule (hukm): Law as Simulacrum in Islam?" History of Religions 38:1 (1998),1-24, esp. 10-17.

30 Al-'Amrani, Al-Qadd', 229, gives a version of this imamic opinion, but without use of the word lafz. In a note he says that the imam's position is that of the "later" Yemeni mujtahids, including al-Jalal (d. 1673), al-Maqbali (d. 1696), Ibn al-Amir (d. 1769), and Shawkani. On Shawkani, in addition to passages in Messick, Calligraphic State, and references provided there, see now the important thesis by Bernard Haykel, "Order and Righteousness: Muhammad 'All al-Shaw- kani and the Nature of the Islamic State in Yemen," Ph.D. Thesis, Oxford, Faculty of Oriental Studies, 1997, and the recent work of Ahmad Dallal, "Appropriating the Past: Twentieth-Century Reconstruction of Pre-Modern Islamic Thought," Islamic Law and Society 7:1 (2000): 325-58. Haykel examines these "later" Yemeni mujtahids as "Sunna-oriented scholars" (1997:xviii). In the light of Haykel's work,

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While, as we shall see, the previously cited dictum from The Book of Flowers by al-Murtada concerning "expression" and "custom" encour-

ages, even privileges, analyses of contractual language, the opposing view held by Shawkani and Imam Yah.ya does not give such weight to this approach, at least in theory. In his commentary work, The Raging Torrent (which, according to its subtitle, runs rampant through the "Gardens of Flowers," i.e., The Book of Flowers), Shawkani cites the

already quoted key phrase of al-Murtada, "with the expression of

ownership transfer, etc.," and impatiently restates (this is the third volume of his commentary) a radically simple view:

We have told you that what is decisive is mutual consent and the satisfaction of the self (tibat al-nafs);31 and that which is informed of and indicated by them is the shar'l sale. This is the decisive opinion in this, period.32

As he puts it later in the same chapter: "[w]e have repeated this for you numerous times ... the sale established in the Book and the Sunna is the

reaching of mutual consent (huwa husul al-tarddl)."33 In this perspective, contractual language has an entirely subordinate role, or as Shawkani says at the outset of his chapter, "nothing is decisive in this [viz., the transfer of property from owner to owner] except pure mutual consent and satisfaction of the self, by any expression (lafz) that occurred, and by any description that happened."34 Whatever its manifest forms, contractual language is only of consequence in so far as it

points to mutual consent and the satisfaction of the self. Insofar as it does so, a 'sale' is constituted in the shar'a.

However, Shawkani cannot avoid giving some minimalist examples in his own version of a linguistic analysis:

If the seller says, "I sold this to you for thus and so," and the buyer takes it, and does not speak or make a gesture, and they part the session (al-majlis), this is a shar't sale, due to the transfer of the sale object from the ownership (milk) of the seller to the ownership of the buyer. And, likewise, if the buyer says, "I bought this from you for thus

the two Zaydi positions I discuss should be understood as involving these later "Sunni" jurists, as they are known in Yemen, versus representatives of the school's original "Hadawi" positions. 31 The phrase tibat al-nafs is a usage drawn from a hadith. See Shawkani, Sayl al-Jarrdr, 3:6, note 1. Paul Dresch, "Keeping the Imam's Peace: A Response to Tribal Disorder in the late 1950s," Peuples mediterraneens 46 (1989), 85, gives a related expression, mutdyabat al-nufuis, used in a 1958 settlement document from Upper Yemen.

U2 Shawkani, Sayl al-Jarrdr, 3:6. 33 Ibid., 3:126. 34 Ibid., 3:6.

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and so," and the seller surrenders it to him, and there issued from him neither word nor gesture, and they part from the session, this is sufficient.35

However, this approach does not eliminate the problems that surround the interpretation of the manifest representations of the foundational, but internal operations of "mutual consent" and "satisfaction of the self." It merely includes wider data, namely, parting the session and silence, in what might be thought of as a general analysis of verbal and non-verbal contractual performatives. Shawkani concludes by saying that the specific Book of Flowers-type of linguistic conditions and methods concerning "offer and acceptance" (to be discussed below) constitute, in his view, undue "regard for the aspect of expressions, and no consideration should be given to this."36

Linguistic analysis

Analyses of language, specifically of possible concrete dialogic expressions of the required "offer and acceptance," are carried out in the lengthier commentary chapters on sale. Earlier, I quoted some example locutions mentioned by a Shafi'i jurist and now I turn to al- 'Ansi's The Gilded Crown, the twentieth-century commentary on The Book of Flowers. As at the beginning of comparable Shafi'i school texts, al-'Ansi contrasts ordinary language usages of the lexeme 'sale' with the technical definitions of the sharf'a jurists.37 One of these last is, "an undertaking between two individuals with full capacity for disposal concerning something licit to possess for a known price with two past-tense expressions." Each element of this definition is subjected to analysis, but it is the last phrase, the requiring of two reciprocally uttered "expressions" (lafzayn), that is, utterances of "offer and acceptance," that is specifically countered in Imam Yahya's principle and rejected by al-Shawkani. These two required "expressions" are further

35 Ibid., 3:7. 36 Ibid. 37 Al-'Ansi, Tdj, 2:306, 308-11. Al-'Ansi begins by addressing a special

problem posed by the words "sale" and "purchase," al-bay' and al-shird'. Both are in the category of Arabic nouns that have two opposite denotations; in this case both words can mean "sale" and "purchase." Al-'Ansi notes that a resolution to this problem at the level of the formal literate language is provided by reference to ordinary language usage: "in the language (lugha) they [viz., the two words] are employed for the acts of the buyer and the seller," by contrast, he adds, "custom (al-'urf) has restricted al-bay' to the act of the seller and al-shird' [and related forms] to the act of the buyer."

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qualified in the definition as "past-tense" (mtdiyayn), which explicitly distinguishes "sale," as an executed contract, from a type of future contract also known to the shari'a (the salam contract). In another sense, however, the past moment pointed to by the contract's manifestly expressed words might be the prior, internal and determinative moment of intent formation.38 In this sense, the outward present of contractual locution refers to the inward past of contractual intent.

Al-'Ansi commences his linguistic analysis proper as he explains seriatim the seven conditions set forth schematically in The Book of Flowers pertaining to the contract itself (as opposed to those that pertain to the contracting individuals or to the commodity [mdl] and the "sale object"). The initial four conditions of the contract concern the language of the "offer and acceptance."39 The first of these is the already cited key passage from The Book of Flowers which holds that a valid sale agreement must occur "with the expression (lafz) of ownership transfer, according to custom." After quoting the phrase, al-'Ansi gives his sample wordings for such legal performatives: "I sold, I made possessor, I gave, I paid, I made over, for thus and so." Then he says, "if he did not say 'for thus and so,' the first expression becomes invalid, the last a vow, and the three in the middle gifts." He continues:

Likewise, if he [simply] says, "It's yours," this would be an acknowledgment (iqrdr). But if he says, "for thus and so," it becomes a sale, as opposed to "I made" and "I consented," since these are not accompa- nied by the expression of ownership transfer (laft al-tamlik) and the contract is not valid with them, except if they are answers, with the meaning of "yes," as when he says, "I sold" or "You bought from me" for thus and so, and the other says to him "I did" or "I consented." Then the contract is valid.40

In addition to this discussion involving verbs and expressions that would be familiar to Arabic speakers anywhere, al-'Ansi provides concrete examples of specific colloquial verbs used in certain sales in Yemen. These are specific to transactions involving grain, the essential agrarian and commercial commodity of the highlands. Use of these verbs (shdt and kil)41 makes contracts valid since, following The Book

38 It should be noted that the marriage contract is different in this respect, inasmuch as it occurs in the imperative, lafz al-amr (cf. Al-'Ansi, Tdj, 2:312).

39 The remaining three conditions do not bear directly on the linguistic analysis. They concern, (5) timing, especially disallowing future dealings; (6) illegal impediments connected with other conditions; and (7) the structure of the contract session (majlis).

40 Al-'Ansi, Tdj, 2:308-9. 41 Variations derived from the shdt root are found in my Ibb town document

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of Flowers dictum, "according to custom," in this specific sphere, they convey the sense of "ownership transfer."

The second and third conditions pertaining to the "offer and acceptance" lead al-'Ansi to further remarks about language and further examples.42 While the second condition concerns the "acceptance" alone, the third is that the expressions of the "offer and acceptance" must "mutually correspond" (they must be mutatdbiqin). This third condition and the fourth, to be discussed below, were the specific targets of Shawkani's critical remarks about linguistic analyses. According to this third condition, although the seller and the buyer, the two speaker- contracting parties, express themselves from different vantage points regarding the property transfer, their expressions concerning the transaction must be equivalent. Employing the basic conceptual distinction between expressions and meanings discussed above, al-'Ansi says the correspondence should be either "in expression and in meaning, or in meaning alone." In this strand of linguistic analysis, intent continues to trump the outward manifestations of language. The example given of correspondence involving both wording and meaning is, "If he says 'I sold these things to you for two thousand' and the other says, 'I accepted them for two thousand' or 'I accepted the sale' or such." The example for correspondence in meaning alone is, "If he says, 'I sold this shop to you for two thousand' and the other says, 'I accepted half of it for one thousand and I accepted the other half for a thousand'." Variations are then adduced, one of which is the case of co-owning sellers of a single property, each of whom sells half of the item, with the buyer accepting only one of their offers. This is possible, al-'Ansi explains, "inasmuch as each of them [the sellers] offered to sell half of it, and even if it was not so worded, but was here [what each] intended (al-murad)."43 If, on the other hand, each of the two intended to sell the whole thing, the acceptance regarding half would not be legal, again by

no. 222, which is dated 1920 (in my files). Al-Hasan b. Ahmad al-Jalal, Daw' al- Nahdr (San'a': Majlis al-Qada' al-A'la, 1985), 3:1117, gives laft al-shit and another example given by al-'Ansi, that of al-qa.da' in connection with debt (dayn). Al-'Ansi also gives sulh for debt relations. R. B. Serjeant and Ronald Lewcock, eds., San'd', An Arabian Islamic City (London: World of Islam Festival Trust, 1983), 593, provide a glossary entry on shd and related forms, all of which have pre-Islamic, Himyaritic antecedents. Kil may be derived from kayl (same glossary, 582).

42 Al-'Ansi, Tdj, 2:309-10. 43 With regard to Sanhiri's analysis of "ultimate intent," discussed earlier, this

usage might represent something like a larger motive for engaging in the transaction.

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the principle of correspondence of "offer and acceptance." If, in conclusion, the "offer and acceptance" correspond "neither in expression nor in meaning," the sale is not legal.

The fourth language condition set forth in The Book of Flowers and taken up by commentator al-'Ansi holds that both the offer and

acceptance must be "ascribed to the self' (mu.ddfayn ild al-nafs).44 In its

grammatical markings the language used by the parties must index a connection with their authoritative interiorities, with their selves and their intentions. Without initially glossing this phrase from The Book of Flowers, al-'Ansi turns directly to an example which assumes two

pieces of grammatical information: (1) in both the first and second

persons, the letter "ta"' is the final marking consonant added to the stems of verbs, here the verbs "to sell" and "to buy," and (2) it is the

following vowel marker, the "u" (or damma) and the "a" (orfatha), placed on this final "td'", that differentiates the first and second persons. While such vowels may be uttered in speech, they do not conven-

tionally appear graphically in the typically unvoweled written text. In the printed text of al-'Ansi's commentary, however, these significant vowels are added to the verbs in question. Like many other such illustrations employed by the jurists (usually without vowel-markers), al-'Ansi's examples involve a representation in written Arabic of statements purported to be in spoken or contractual Arabic. Whether these verbs actually represent a spoken formal Arabic (fusha), which would be unlikely in an actual sale contract, or spoken colloquial Arabic, which would not necessarily have the vowelings indicated, is a

problem, at least in the first part of the example. Al-'Ansi partially addresses this problem in a qualification in the second part.

Al-'Ansi's positive example of "offer and acceptance" wording that exhibits this requisite "ascription to the self' is:

If the seller says, "I sold"-with a damma ["u"] on the "t"'--and the buyer, "I bought"-with a damma on the "ta'."

Both verbs, expressing the reciprocal past acts of selling and buying, are marked with the appropriate damma, the "u" of the first person. "Ascription" to the selves of the seller and the buyer is achieved

through formal grammatical correctness. The second part of this

example is negative, illustrating how this "ascription" is not achieved, at least in formal grammatical terms. (What actually is found in this

44 Al-'Ansi, Tdj, 2:311. He uses a term related to that used in grammar for the construct state, the iddfa.

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part of the example, which I will not quote, is two second person verbs which attribute legal acts to the opposite party.) In addition to these possibilities, al-'Ansi continues, the authority of linguistic custom also may be recognized, according to which the condition of "ascription to the self' still may be achieved:

If there had been afatha ["a"] on the " t"' of the speaker, it would not be valid, except following the custom in his language, which would not be prejudicial, as in the language of some of the regions.

Al-'Ansi notes parenthetically that this issue of customary linguistic usage is analytically relevant to "all of the legal performatives and contracts" (sd'ir al-insha'dt wa'l-'uqiid). Following a further cue from The Book of Flowers, he adds that the same effect of "ascription to the self' can be achieved by a variety of utterances, including both the formally correct response, "'yes' (na'am), or 'iyah' or 'aah,' as is the language of custom (lughat al-'urf)." He says that even, for example, "[i]f the seller (al-ba'i) says, [instead of 'I sold'], 'I bought (ishtaraytu) this for thus and so,' and the buyer says, 'yes,' it is sufficient." Following such precarious wording, al-'Ansi does not require any correcting expressions, and his summary requirement for meeting this fourth condition is an "expression" (lafz) that is "past-tense, unambiguous (sarih) and ascribed to its speaker."

Repudiations

To provide contrast with their analyses of bilateral contracts, I now will consider the Zaydi jurists' analyses of the unilateral act. The legal domain of talaq, or "repudiation" of the wife, is equally reliant on analyses of possible utterances. But the situation is different from that in "sale" and related contracts in that the utterances in question do not take the reciprocal, dialogic form of the bilateral undertaking's "offer and acceptance." Instead, the utterances evaluated in chapters on "Repudiation" are all unilateral declarations by the husband. More important, according to some opinions, notably that of The Book of Flowers, in this domain "expression" (lafz) can have independent weight. While intent retains a certain authority in this legal domain, according to the author of The Book of Flowers, in his comparative legal study, The Overflowing Sea, repudiation "cannot occur simply with intention, rather expression is required."45

45 Al-Murtada, al-Bahr, 3:155.

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To implement this heightened importance accorded to expression, Zaydi chapters on taldq modeled on The Book of Flowers are organized around a further distinction. Returning to al-'Ansi's commentary, now in his chapter on "Repudiation,"46 we read, "expression is divided into unambiguous (sarlh) and indirect (kindya)." The first type of expression, the unambiguous, is spoken with knowledge of its meaning by a fully capable and discerning individual.47 This is expression that is clear and pure, the jurists' equivalent of transparent language. The associated intentionality is patent, virtually present in the expression itself, as in al-Murtada's formulation in this connection which refers to a husband who "intended the expression unambiguously" (qasada al- lafzafi'l-sarih). Furthermore, al-'Ansi comments, if the individual who utters such an expression "did not intend its meaning, the repudiation occurs [nevertheless], by the intention of the expression (bi-qasdi al- lafzi)." Conversely, if the expression of repudiation (i.e., "taldq") is not spoken, "but he intended repudiation in his heart alone, it does not occur, due to the absence of the expression."

Limiting these conceptions of the relation of intent to expression, however, are the special words of the joker, who-like the sleeper who murmurs his dreams aloud and the coerced speaker- recurs as an instructive analytic figure throughout the repudiation chapter. Ordinarily, it is legally sufficient that one simply utters the appropriate letters of the word "taldq." The ideal performative models are, "You are repudiated" (anti tdliq), "I repudiated you" (tallaqtuki), or "Repudiation upon you" ('alayki al-talaq).48 "I repudiated" alone is insufficiently unambiguous. Lacking the requisite "intention of the expression," the murmurings of the sleeper are exempted, as is, in a fanciful example, the tongue-tied individual with a wife named Tariq who replaces the "rd"' in her name with a "lam" as he calls out to her. In all such special cases intent retains a separate authority.

A more technical definition of expression that is "unambiguous," cited by al-'Ansi from The Book of Flowers, is "that which does not

46 Al-'Ansi, Tdj, 2:119-20. Cf. Schacht, Islamic Law, 116. 47 Another of Imam Yahya's ikhtiydrdt raises the issue of differences between

the informed and the uninformed legal actor. In his commentary on the ikhtiydr in question, al-Shamahi, Sirdt, 44, states that untutored individuals "do not understand the meanings of expressions (madluldt al-alfdz)." See Brinkley Messick, "Textual Properties: Writing and Wealth in a Sharl'a Case," Anthropological Quarterly 68:3 (1995), 161, for an application of this ikhtiydr in a 1948 case involving inheritance and endowments.

48 Al-'Ansi, Tdj, 2:120.

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convey other than it."49 In this instance, unitary meaning is conveyed by wording comprising the letters "td"', "lam" and "qdf." Such "un-

ambiguous wording," al-'Ansi reiterates, "does not require intention," whether it is a "legal performative act" (insha'), an acknowledgment (iqrdr), or occurs in an act of calling (nida'). Related special compound conceptions, the "expression of the performative act" (lafz al-insha'), and the "expression of the acknowledgment" (lafz al-iqrdr) are used by al-'Ansi in connection with repudiation.50 Both such conceptions and "intention of the expression," mentioned above, envision a joining, in this particular legal domain of the unilateral act, of special forms of intention with various forms of outward expression. Across the several specific types of possible spoken acts, repudiation is immediate as the words are uttered. An example given is that of a husband calling out to his wife to repudiate her. Even if the husband omits pronunciation of the final consonant "qdf' of the word "taldq,"51 as in some dialects, the

repudiation takes effect with his words, except if he is not a native speaker of Arabic. Like other commentators, al-'Ansi also provides examples of unambiguous and therefore binding words in Persian.52

It is with the second category of repudiation expression, namely, "indirect expression" (kindya), however, that examples of potential utterances proliferate in commentaries such as al-'Ansi's Gilded Crown. In the language sciences, the term kindya refers to a specific trope, metonymy, but in this legal context, in a practical rhetoric for lawyers, the term refers generally to allusive or figurative language of several types, although metaphor (majaz) is treated separately. Another commentator remarks that "the intention in [the use of the term] kindya here [that is, in the The Book of Flowers text upon which he is commenting] is not the kindya of the science of rhetoric ('ilm al- baydn)."53 The main point concerning "indirect expression" is that, unlike "unambiguous" locutions, such expression is not immediately binding in and of itself, but instead requires that a link be established between "expression" (lafz) and "meaning" (ma'na), that is, with intent.

49 Ibid., 2:120. Discussion of expression classified as sarlh and of single meaning also is carried in the Zaydi usul works, e.g., Muhammad b. Yahya Bahran, Matn al-Kdfil (San'a': Dar al-Turath al-Yamani, 1991), 28.

50 Al-'Ansi, Tdj, 2:121. 51 By tarkhim, elision of the final consonant of a name in the vocative. 52 Al-'Ansi, Tdj, 2:121-2. He states that talaq can occur in "all tongues,"

according to al-Sayaghi's Rawd al-Nadir and to the view of Imam Zayd. 53 Al-Jalal, Daw' al-Nahdr, 3:905-6. See also EI2, s.v. Bayan.

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The basic definition of "indirect expression," cited by al-'Ansi from The Book of Flowers, is "that which conveys it and other than it."54 A1- 'Ansi explains that for a particular speaking individual this involves an expression such that "if a member of his language group hears it he would be uncertain as to whether he [viz., the speaker] wants to repudiate, or [wants] something else." That is, "indirect expression" involves wording which is not specific to repudiation. Among the examples offered are, "I separated," "I dismissed," "You (f.) are free," "I have no wife," "Gather your clothes," "Go to your people," "Get on the road to your district," "Marry someone else," and, simply, "Leave!"55 More elaborate, oath-like expressions are, "You are to me forbidden like wine," or "like carrion," or "like a stranger." "All these," al-'Ansi concludes, are examples of "indirect expression of repudiation (kindyat al-taldq)," and the associated principle is that "if he [viz., the husband] intends by them repudiation then it occurs, and if not, nothing [occurs]." Al-'Ansi also notes here that the common people (al- 'awamm) customarily use various expressions containing the word "forbidden" (haram), and, again, this amounts to a binding "indirect expression of repudiation," if repudiation is intended, and if not, nothing.

To all such linguistic analyses in the unilateral sphere of repudiation Shawkani, once again, is strongly opposed.56 In the course of his commentary, after he quotes the above-mentioned phrase from The Book of Flowers which refers to the husband who "intended the wording unambiguously" (qasada al-lafzafi' l-sar.h), he offers the following scathing remark: "[T]his is one of the strangest of interpretations and marvels of opinion" (hadha min ghard'ib al-ijtihdd wa 'ajd'ib al-ra'y). For Shawkani, there is no relevant distinction to be drawn here between expression that is unambiguous (sarlh) and expression that is indirect (kindya), as repudiation simply occurs when it is intended.57 Countering the position of The Book of Flowers in respect to an unambiguous expression of repudiation, Shawkani writes, "He who does not intend the meaning of the wording is not held to it, even if he utters it a thousand times."58 In the event of subsequent litigation brought by the wife, if the husband had used an unambiguous expression of repudiation but claims that he did not intend its meaning, Shawkani

54 Al-'Ansi, Tdj, 2:122. 55 Ibid., 2:123. 56 Al-Shawkani, Sayl al-Jarrdr, 2:343-45. 57 Ibid., 2:345. 58 Ibid., 2:343.

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acknowledges that it is clear that the husband is making an assertion that runs counter to appearance (khildf al-zahir), appearance being the normal basis for a judge's ruling. This is the situation, "since he [viz., the husband] is claiming something which would not have been the act of those of sound mind in most circumstances." Shawkini concludes, "But inasmuch as the intent (al-qasd) cannot be known except from his

perspective, the prevailing opinion (al-qawl) is his statement (qawl), together with his oath." As for indirect expression, Shawkani states, "Repudiation occurs on the basis of every expression or such like which indicates disunion (al-furqa), whatever it may be, inasmuch as he was intending disunion by it."

Written intent

Thus far, my discussion of legal intent has referred only to the

problems surrounding such manifest forms as spoken words. A further

layer of problems is engaged in considering manifestations of intent in written representation. One set of these problems, examined briefly here, concerns writing in a narrow sense, as it is used to convey the

expressions of the party or parties to legal acts. Another set of

problems, examined elsewhere, concerns writing in a broader sense, as in the final and encompassing legal documents prepared after the fact

by notaries.59 Jurists have a technical view of writing itself. By "writing" (kitdba),

they refer to something concrete and enduring and outwardly manifest:

[I]t is necessary that it leave a trace (athar) which may be seen externally, and this does not occur unless it is [inscribed]60 writing, as in writings on paper or boards61 or stone, etc., on which the letters of the writing remain inscribed. [This may include] writing with earth or flour, or upon them.62

This definition of "inscribed writing" appears in al-'Ansi's commentary chapter on "Repudiation." As with spoken words, written representations conveying the expressions of the party or parties have very different implications in unilateral as opposed to bilateral legal acts.

Writing, in the context of repudiation, is special because it too is

59 Messick, Calligraphic State, chs. 11, 12. 60 The bracketed word is from The Book of Flowers, the text upon which al-

'Ansi is commenting. The matn text uses the formulation "inscribed writing" (kitdba murtasima).

61 The word (sing. lawh) refers to the writing boards used by students. 62 Al-'Ansi, Tdj, 2:122.

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associated with unilateral expression (by the husband): it is the singly acting individual's proper or autograph writing. Writing in this unilateral context is located conceptually within the previously mentioned distinction between "unambiguous" and "indirect" expression. Extend-

ing his categories further, al-'Ansi explains that "indirect" expression is itself of two types, comprising both "expression and other than

expression" (lafz wa-ghayr lafz), and the principle instance of the latter, "other than expression," is "writing" (al-kitaba). In passing, we have an affirmation of an ongoing assumption, namely, that the term lafz has meant "spoken expression," not just "expression" as I have thus far translated it. Accordingly, the rubric ghayr lafz, which includes "writ-

ing," actually should be translated as "other than spoken expression." Pushing the categories in another direction, al-'Ansi explains that

expression in unilateral "inscribed writing" may be either "unambiguous" or "indirect." The important point is that with either of these types of written expression, given the required intention, repudiation occurs.

Diametrically opposed to this "inscribed writing" is another "writing," which I would label traceless, which has different implications. This traceless "writing" is that which occurs

in the air, or on water, or stone, on a surface not manifesting the trace of the writing and which is impossible to read, either immediately or [because] the first part of a letter disappears before the second part is begun.63

With this traceless writing, the important legal conclusion is that

"repudiation does not occur with it, even if he so intended." Viewed across the chapters of the law books, however, writing in

the context of repudiation represents a specialized variety, an interesting exception. It is special because it is associated with unilateral expression (by the husband), whereas, by contrast, writing in the contractual domains based on the "offer and acceptance" is connected with the

complexities of bilateral expression. If the unilateral situation is that of the singly acting individual's proper, autograph writing, the bilateral one is that of writing in the space between self and other. As a conse-

quence, whereas writing is classified as a form of "indirect expression" in repudiation, in the contractual domains writing, together with all other forms of expression, must be "unambiguous" (sar.h).

Employing the distinction between unilateral and bilateral under-

takings al-'Ansi explains that inscribed writing must be

63 Ibid.

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"unambiguous" (sarlh) in marriage and in sale because it is a contract between him and other than him. There is no "indirect expression" (kindya) in them [viz., the bilateral contracts], and no [associated] reliance on intention in them, as opposed to repudiation and oath (yamin), where there is "indirect expression" (kinaya) because they involve expression (laft) between him and his self (nafs), and his intent has authority in them [viz., the unilateral acts].64

In bilateral contracts, while speech once again is envisioned as the normal medium for the "offer and acceptance," these reciprocal expressions also may take written form. Specifically, an "acceptance" is legal in writing, although it is necessary that it is "unambiguous" (sarfh), as, again, "there is no indirect expression (kinaya) in the transactions."65 Following the order of presentation in The Book of Flowers, however, al-'Ansi mainly treats writing later, where it is associated with special media such as the gesture (ishira) and with the circumstances of such special actors as the blind and those with speech and hearing impairments. All such individuals can contract with

gestures and with writing.66 Earlier, however, al-'Ansi had referred to

writing as "more manifest than gesture," and he further explained that, whereas gestures are not permitted from the unafflicted, writing is.67 The Book of Flowers itself specifically mentions writing in its "Sale"

chapter only after a passage on the unusual situations of the capable minor and the slave acting as agents in a contract.

Sunni connections

Differences of position within the Zaydi school concerning the analysis of intent mirror those that existed among the Sunni schools. Here I refer to two other distinguished Zaydi jurists, al-Hasan b. Ahmad al-Jalil (d. 1673) and Muhammad b. Isma'il al-Amir, known as Ibn al-Amir (d. 1769), who are associated with al-Shawkani as "later" Yemeni mujtahids.68 Al-Jalal, the author of The Light of Day, a seventeenth-century commentary on The Book of Flowers, introduces one of a pair of

opposed concepts that can be used to distinguish the positions of the Hanafis, Shafi'is and Hanbalis.69 As he addresses the relationship between the manifest level of ordinary language and the internal

64 Ibid., 2:26, quoting al-Baydn, by Ibn Muzaffar (d. 1474). 65 Ibid., 2:309, cf. 318. 66 Ibid., 2:315-8. 67 Ibid., 2:27. 68 See note 28 above. 69 Al-Jalal, Daw' al-Nahdr, 1118. Cf. al-Murtada, al-Bahr, 3:297.

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'language' of intentionality, al-Jalal highlights the two opposing positions. Citing the same problematic utterance that later is repeated as an example in the twentieth-century commentary by al-'Ansi, al-Jalal

says that one view holds that such a verbal exchange would not constitute a sale contract for the Zaydis. The basic issue, as al-Jalal

puts it, introducing the key concept, concerns whether the "wordings of contracts are a report (khabar) concerning what is in the self (nafs)." Resonant with meanings across several of the traditional Islamic

disciplines, the term khabar (pl. akhbdr) is a key synonym for the

reported tradition, the hadith, while among the grammarians it means

"predicate." One opposite of the related term, "informational"

(khabarl), is the term "performative" or "creative" (inshd'i). Using these

contrasting notions one can say, for example, that the non-binding fatwd of a mufti is "informational" while the binding ruling of a judge is "creative."

On the bottom half of the same page in my printed edition of al- Jalal's commentary, his phrase, "report (khabar) concerning what is in the self (nafs)," is picked up in the supercommentary (hashiya) by the

eighteenth-century jurist Ibn al-Amir. It is Ibn al-Amir who makes the

specific connection with several of the Sunni schools. Concerning the

analytic problem centering on expression in contracts, Ibn al-Amir states generally that "the jurisprudents differ as to the status of these forms (siyagh); the Hanafis are of the opinion that they are reports (akhbdr), [while] the Hanbalis and the Shafi'is hold that they are

performative acts (inshda't), not reports." Ibn al-Amir then turns to a distinction put forward by the famous Hanbali jurist, Ibn Qayyim al-

Jawziyya, whom he quotes: Forms (siyagh) have a dual relation. One involves their external connections, and it is in this respect that they are specifically "performative", as the Hanbalis and the Shafi'is have held. Another is their connection to the intention (qasd) of the speaker and his will (irdda), and it is in this respect that they are "reports" for what was intended, as the Hanafis have said.70

In bilateral contracts, then, the opposed views of the Zaydi jurists on the relation of legal expression to intention may be situated with respect to some of the Sunni schools. Since The Book of Flowers and modem commentator al-'Ansi hold that such manifest legal expressions are

70 Muhammad b. Isma'il al-Amir, Minhat al-Ghaffdr (San'a': Majlis al-Qada' al-A'la, 1985), 1118. Ibn Qayyim al-Jawziyya also is quoted on this subject on p. 903.

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necessary and require linguistic analyses, they are close to the Shafi'is (also an indigenous school in Yemen), who consider such expressions to be "performative acts." As a consequence, their foundationalism, their emphasis on anchoring legal analyses in a bedrock of intent, is less marked. By contrast, al-Shawkani and Imam Yah ya (as elaborated upon by al-Shamahi), who do not require specific expressions for such bilateral legal acts and reject linguistic analyses, are close to the position of the Hanafi school which regards such expressions not as performatives but as "reports" of intent. In their proximity to the Hanafi position, these Yemeni jurists can be said to share this Sunni school's relatively strong foundationalism.71

These opposed analytic categories are relevant as well to the discussion of unilateral acts such as repudiation (taldq). In this legal domain, the position of al-Murtada in The Book of Flowers and of commentator al-'Ansi is that certain expressions alone are performative acts, without a necessary connection to intent, and that specially tailored linguistic distinctions and analyses are therefore relevant. In this domain of the unilateral act their position becomes anti-foundational. However, this position, that "unambiguous expression" in repudiation itself constitutes a "performative act," is contested by other commentators on The Book of Flowers, including, as noted earlier, al-Shawkani, who are consistent in their foundational analyses. Al-Jalal, for example, holds that, together with such bilateral contractual language as "I sold" and "I married," the unilateral statement "I repudiated" is not a "performative act" (inshd'), but rather, again, a "report (khabar) concerning what is in the self (nafs)."72 Al-Jalal refers to the analyses of the grammarians as he maintains that the word for 'repudiation' itself might be ambiguous, as it may also mean to restrict the wife to the house or to restrain her from making transactions.

Outside/inside

As noted at the outset, questions of an historically specific form of "inwardness" are involved in these juristic analyses of legal intent. The relevant metaphor of the human interior in this legal discourse locates processes of intent formation specifically in the human "heart," which

71 In Anglo-American terms (in criminal law) the former position might be seen as "objective," the latter "subjective." In a striking convergence of terminology, Ronald Dworkin argues in another connection that a statement of intention is "mainly a report rather than a performance" (cited in Crapanzano, Serving the Word, 379, n. 17).

72 Al-Jalal, Daw' al-Nahdr, 904.

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is part of the larger interior realm of the "self," the nafs, with the overarching construct being the shar'l subject. Just as this legal individual must be distinguished from the western legal subject, so too must the respective concepts of "inwardness" be distinguished. One way that these legal analyses of intent are distinguished is that they are cross-cut by another set of categories which also are applied to the relations between the outward or manifest as opposed to the inward or concealed. The terms in question are zahir and batin, and, in the legal domain, a fundamental principle holds that analyses are to be conducted on the level of the outward or manifest, the zdhir, and not on that of the bdtin. This rule has many implications in Zaydi legal practice, including the allocation of the litigation roles of plaintiff and defendant, with the plaintiff being the party whose claim runs against the apparent situation (al-zdhir).73 Two compound usages have been mentioned here in passing, the first, zdhir al-khitdb, used by al- Shamahi, describes a legal approach to the manifest sense of discourse, and the second, khildf al-zahir, used by Shawkani, refers to something contrary to the appearance of things, appearance (al-zdhir) being what is meant to guide the judge in his ruling.

Despite their doctrinal differences concerning intent, both Zaydi positions must operate interpretively with the available forms of manifest expression, that is, on the level of the zdhir. One position sees these manifest expressions as quasi- or completely sufficient legal performatives, either presuming a link to intent (in bilateral acts) or not requiring such a link (in some unilateral acts), while the other position sees them merely as "indications" of intent. Where the first mounts a full linguistic analysis, the second conducts a wide-ranging analysis of signs. A comparative observation is that this basic legal orientation to the outward and manifest, to the zahir, serves to restrain the sort of "depth" analyses that grew up in "subjective" western legal interpretation. In the Islamic tradition there was no legal psychology; the classic expert called to court was the physiognomist, the specialist in reading outward physical signs as indications.

Conclusion

In human legal relations determinative meaning-formation is situated by the jurists at a crucial remove from the lived sign world of language

73 For a discussion specific to the Shafi'i school, see Messick, Calligraphic State, 176-7.

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and other forms of expression. Analyzing mutual consent in a situation involving at least two participants to an undertaking requires an effort to understand dialogically constituted meaning. Analytically different is the situation of the unilateral declaration. Uncluttered by a response from an interlocutor or by the latter's intentions, the intentionality of the unilateral legal act could, for some, come closer to being directly manifested in the various forms of expression. Given the assumed gap between forms of expression and intention, legal analyses amount to attempts to erect bridges from the accessible to the inaccessible. The interpretive work of evaluating spoken and written expression, whether these are understood as "performatives" or "reports," represents such a bridging effort.

Mikhail Bakhtin has written generally of the "authoritative word" that "we encounter it with its authority already fused to it."74 In the analytic view of the Zaydi jurists, meaning creation occurs at the level of intent-formation, and it is only in the theory of the unilateral act that this authoritative intentionality can, for some, approach being "fused" with the spoken word. Otherwise, the "authoritative word" exists only in the deeper, or prior 'language' of human intentions, in relation to which the external language of contractual relations is, according to one view, epiphenomenal. The limit case here, I suggest, is the divine word, in which, by definition, there is no separation of intentionality and expression. It is paradigmatically the Word of God, in the Qur'an, that is encountered by Muslims "with its authority already fused to it." As with the divinity, however, the source of legal authority in human intentions is "located in a distanced zone."75 Ultimately, neither knowledge of God Almighty nor of the intentions and meanings located in the interiors of other humans are fully attainable and ascertainable by interpreters. But these sources of authoritative meaning, these locales of truth, remained the identified objects of interpretive efforts. Meaning conceived of as constituted in "a distanced zone" activated and anima- ted a distinctive legal semiotics, a practical lawyer's science of manifest signs, that was integral to an interminable, always incomplete and also always contested human pursuit of understanding.

74 Mikhail Bakhtin, The Dialogic Imagination (Austin: University of Texas Press, 1981), 342-43.

75 Ibid., 342.

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