Intention and Method in Sanhūrī's Fiqh: Cause as Ulterior Motive

Abstract

AbstractIn his attempt to bring classical Islamic jurisprudence closer to the legal and judicial norms of modernity, the Egyptian master-jurist ʿAbd al-Razzāq al-Sanhūrī identified a structural similarity between the ḥanbalī doctrine of intention (nīya) in contracts and contemporary French law, which upholds the legal effect of the driving motive in validating or nullifying a contract. Sanhūrī demonstrated that the same pietist ethical dimension of the medieval Church-jurists' theory of subjective motivation, which is the historical source of modern French and Egyptian judicial practice, is also present in the Islamic legal tradition. Through a comparative and critical analysis of the major Sunnī law schools' doctrines of intention in contracts, Sanhūrī corrected Chehata's conclusions of 1936. It emerges that in contrast to ḥanafī and Shāfiʾi jurisprudence, which ignore ultimate motive when it is not apparent from the terms of the contract, ḥanbalī and Mālikī law stress the licitness of the subjective cause of the contract as a sine qua non condition for its validity.