Selected Juristic Preferences of Judge Muḥammad Ibn ʿAbd al-Salām al-Hawwārī in Selected Issues of: Mudarabah A Comparative Jurisprudential Study

Abstract

This study aims to examine the juristic preferences and legal opinions of Judge Muḥammad ibn ʿAbd al-Salām al-Hawwārī regarding selected issues of muḍārabah (qirāḍ) through a comparative jurisprudential analysis. It seeks to highlight his methodology in legal reasoning and juristic preference, while examining the extent to which his views conform to or depart from the predominant position of the Mālikī school.

The research problem centers on identifying al-Hawwārī’s juristic preferences concerning selected issues of qirāḍ, analyzing his method of legal reasoning and preference, and evaluating the degree of their conformity with the Mālikī school, particularly since these opinions are dispersed throughout works of Islamic jurisprudence and legal responsa and have not previously been compiled in a specialized independent study.

The study is divided into two main sections. The first presents a biographical account of Judge Muḥammad ibn ʿAbd al-Salām al-Hawwārī, including his upbringing, teachers, students, scholarly works, and academic standing. The second examines four juristic issues in qirāḍ in which his legal preferences are evident: qirāḍ conducted with copper coinage (fulūs), the purchase by the investment agent in excess of the capital, the maintenance expenses of the investment agent, and the legal entitlement in an invalid qirāḍ contract after performance has taken place.

The research adopts the inductive method to collect and trace the relevant juristic issues, the analytical method to examine the opinions and their evidences, and the comparative method to evaluate the views of different jurists and determine the stronger opinion.

The study reaches several significant findings. It concludes that Judge Muḥammad ibn ʿAbd al-Salām al-Hawwārī was among the leading Mālikī jurists, distinguished by precision in legal analysis, rigorous juristic reasoning, and consideration of the higher objectives (maqāṣid) of Islamic law. His juristic preferences concerning qirāḍ largely conform to the established principles and general rules of the Mālikī school, while also demonstrating independent legal reasoning in certain issues. He considered qirāḍ with circulating fulūs to be permissible, adopted the predominant Mālikī opinion regarding the agent’s purchase in excess of the investment capital, maintained that the agent’s travel expenses should be limited to the additional costs incurred because of travel rather than ordinary living expenses, and preferred awarding the agent the prevailing market wage (ujrat al-mithl) in the case of an invalid qirāḍ contract after work had been performed. The study further highlights the richness of the Mālikī legal heritage and the significance of juristic preferences in addressing contemporary financial and investment issues. It concludes by emphasizing the importance of preserving al-Hawwārī’s scholarly legacy through the critical editing of his works, encouraging specialized research on the juristic preferences of Mālikī scholars, and benefiting from their legal reasoning in developing sound Sharīʿah-based solutions to modern legal and financial challenges.