Receipt (Qabḍ) and the Pre-Legal Architecture of Juristic Disagreement

Abstract

Abstract

The classical juristic disagreement (ikhtilāf) over receipt (qabḍ) in Islamic commercial law has persisted for centuries despite agreement among the four legal schools (madhāhib) on both the observable facts of disputed transactions and the governing rule that requires receipt. This paper locates the level at which the disagreement arises and argues that it is pre-legal: it concerns the epistemological standard that licenses the inference from observable facts to the legal fact that receipt has occurred, a standard each jurist settles before consulting the texts and one that determines what he takes the texts to require. The argument proceeds by doctrinal analysis of the four schools' criteria for receipt and of Ibn al-Qayyim's dissents, read against the modern standards of AAOIFI and the International Islamic Fiqh Academy within a framework drawn from the legal epistemology of Northrop and Stein. The analysis yields three findings. All four schools derive their criteria from custom (ʿurf) and fix its content in rules stated in advance, while Ibn al-Qayyim admits the same evidence at a different level, reading the practice of the transacting parties' own community in each case. The two commitments produce opposite rulings wherever criterion and practice diverge. The modern standards reproduce the disagreement inside their own texts, stating Ibn al-Qayyim's definition while applying the schools' method. The paper concludes that the disagreement is resolvable on the premise every school concedes: receipt is what a community recognizes as possession for goods of that kind, and instruments outside the standards' enumerated forms are judged by that recognition.