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

Abstract

This study examines selected juristic preferences of Judge Muḥammad ibn ʿAbd al-Salām al-Hawwārī concerning issues related to ijārah (lease contracts) and juʿālah (reward-based contracts) through a comparative jurisprudential analysis. It aims to identify the legal foundations upon which he based his juristic preferences and to compare them with the opinions and evidences of the major schools of Islamic law. The study begins with a brief biography of al-Hawwārī and an overview of his scholarly standing, followed by an analytical discussion of four juristic issues: the entitlement in an invalid juʿālah contract after the commencement of work, the legal consequences of retaining leased property beyond the agreed lease term, the characterization of contracts that fluctuate between ijārah and juʿālah, and the rental liability when the leased property perishes during the lease period. The research adopts the inductive method to collect and examine al-Hawwārī’s legal opinions, the analytical method to evaluate his reasoning and evidence, and the comparative method to assess his preferences alongside those of other jurists.

The study concludes that Judge Muḥammad ibn ʿAbd al-Salām al-Hawwārī was one of the leading Mālikī jurists of the eighth century A.H., distinguished by his extensive scholarship, sound legal reasoning, and strength in juristic preference, which earned his opinions considerable attention among later scholars. His legal preferences concerning ijārah and juʿālah were not merely a transmission of the Mālikī school’s positions but were founded upon careful examination of legal evidence, adherence to juristic principles, and consideration of the higher objectives (maqāṣid) of Islamic law. Among the principal findings is that he preferred granting the worker the prevailing market wage (ujrat al-mithl) in the case of an invalid juʿālah contract after work has commenced, in order to preserve the worker’s rights. He also maintained that a lessee who retains the leased property beyond the agreed period is liable to pay the prevailing rental value for the additional period, since the benefit has been enjoyed without renewed authorization. Furthermore, he held that the lessor is not entitled to rent for the period following the destruction of the leased property before the intended benefit has been realized, in accordance with the principle that rent is due only in return for an actual benefit received. Overall, al-Hawwārī’s juristic preferences reflect rigorous legal reasoning, sound justification, and consistent adherence to juristic maxims and the objectives of Islamic law, demonstrating both their doctrinal strength and their relevance to practical legal issues, thereby affirming his distinguished position within the Mālikī school and his significant contribution to the development of Islamic jurisprudence.