Contracts in Islamic Law: The Principles of Commutative Justice and Liberality

The fact that the jurists of the formative/classical period of Islamic law did not explicitly articulate a general theory of contract has given rise to two radically different yet equally mistaken conclusions. The first conclusion, associated mainly with non‐Muslim scholars of Islamic law, has argued that this failure to develop a general theory of contract law (and other categories of law) is evidence of conceptual primitiveness. The second conclusion is a reaction to the first and is held mainly by Muslim scholars trying to prove that there is in fact a general theory of contract law. This general theory, it is argued, is mainly based on the ability of Islamic law to enforce innominate contracts. This article points out that both these conclusions are unwarranted. There is no general theory of contract law in Islamic law. What there are are principles, which the jurists applied in deriving both the structure and content of the contract law. The two main principles (though by no means the only principles) are the principles (or virtues) of commutative justive and liberality. These principles inform Islamic contract law just as they informed the Aristotelian understanding before them and the Thomistic, Roman and Civilian understanding of contract law after them. The construction of contract law on the basis of these principles is evidence of conceptual sophistication.