(PREEMPTION OF EVASIVE LEGAL DEVICES')
Quote - The Council of the Islamic Fiqh Academy, holding its Ninth
Session in Abu Dhabi, State of the United Arab Emirates, from 1 to 6 Dhul
Qida 1415 H(1-6 April, 1995.
Having considered the research papers forwarded to the Academy on the
subject of "'Sadduz-zara"ie " (preemption of evasive legal devices)
Having listened to the debate around the subject.
1.Pre-emption of evasive legal devices is one of the Islamic Shari'a
principle rules. It is defined as the prohibition of an otherwise
permissible matter but which may be used as a proper or stepping stone to
achieve evil or transgression .
2.Pre-emption of evasive legal devices is not confined to matters that call
for questioning or caution , rather it may extend to all that could be used
as bridge way to anything illicit (Haram).
3.Pre-emption of evasive legal devices calls for barring the way against
any subterfuge leading to the commitment of prohibited acts or to nullify
any of the Shari'a requirements, though a subterfuge differs from "Zarii'a"
(evasive legal devices) in that the former is dependent on the existence of
deliberate intent whereas the latter is not.
4.Evasive legal devices are of several categories:
·The first category is subject of consensus as to its prohibition : This
category includes devices that are stipulated in the Holy Quran and the
Sunnah of the Prophet (PBUH), and those which are definitely or most
probably conducive to evil action, whether the medium used is itself
permissible or delegated or obligatory. Such is the case of contracts which
are concluded for the purpose of committing a prohibited action (Haram) by
providing for it in the contract.
·The second category is subject of a consensus as to its optimal character.
This category includes cases where the social benefit exceeds the harm that
may be caused.
·The third category is subject of disagreement: it includes cases where to
all appearances, the intention is a healthy one but still shrouded in the
suspicion that it is meant as passageway to something prohibited, in view
of its frequent use to such
5.The criteria for allowing an evasive legal device is that it scarcely
leads to evil doing or that it social benefits are more likely than any
resulting evil associated with it.
6.The criteria for prohibiting evasive legal devices is that it definitely
or in most cases conducive to evil, or that the evil likely to arise from
it is more important than any benefits associated with it.
Verily Allah is All-Knowledge - Unquote
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