The حنفی فقہ میں اصول سد ذریعہ کی مشروعیت اورمعاصر منتخب معاشرتی و معاشی مسائل پر تطبیق

The Principle of Blocking the Means (Ṣad al-Zarā’i) in Ḥanafī School of Jurisprudence and Its Application on Selected Contemporary Social and Economic Issues

Abstract

Abstract: Ḥanafī School of Fiqh is considered the oldest one among all schools of Islamic jurisprudence. It has many distinctions in terms of practicability. The principle of sad al-zarā’i {blocking the means} which was initially developed in the Mālikī school of Jurisprudence was opted by other schools embedded under other principles of those respective schools later on. This paper is an effort to present a research-oriented sketch of the existence of this principle in the Ḥanafī School and its application to selected modern issues. The writer has explored the rulings of famous Hanafi jurists under the said principle. Although it is crystal clear that the mutaqadimīn Ḥanafī jurists such as Imam Sarakhsī have not applied this rule nor mentioned it as a secondary source of law yet the muta’akhirīn from this school have applied this rule which indicates that they have considered it as a principle. The interest-based transactions in non-muslim countries which are permissible in principle have been marked as impermissible by many contemporary Ḥanafī jurists under the said principle. They argue that such allowance may lead to creating ambiguity about the impermissibility of interest in normal conditions. The Tawarruq means selling something on deferred payment, and then buying it back in cash, albeit at a lower price than the deferred price. According to the Ḥanafī school if this takes place among three people it will remain permissible. But plenty of other jurists do not favour it arguing that it might lead to ‘ina which takes place between two people. The nikāḥ al-misyār which also enjoys the favour of Ḥanafī jurists according to their set principle for marriage has been strongly criticized by many Ḥanafī jurists based on said principle. The covering of face for female can also be inserted in this list. The author has concluded that there must be limited use of this rule as it often causes the prohibition of what Shariah has allowed.