RESOLUTION
NO. 92/9/9
CONCERNING
'SADDUZ-ZARA "IE"
(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.
RESOLVES
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
intent.
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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