^{page 358 note 1} In this conflict of views Abu Hanifa may be said throughout to represent the extreme position of the “ speculative jurists ” (ahl ul-ra'y), and Ahmad, b. Hanbal (and the Zahiris) the extreme view of the “ traditionalists ” (ahl ul-;ḥadimacr;tḥ); while the Malikis and Shafi is take a middle view between these two extremes. See al-Qarrāfī (al-Furūq, Vol. II, pp. 82 ff.) and Ibn Hazm (al-Mu;ḥalla, Vol. 9, pp. 493 ff.).

^{page 359 note 1} This is the pure Hanafi view, according to al Tahānawi (Iṣtilāḥāt ul-‘Ulūm, Vol. I, pp. 816 ff.), which distinguishes three categories of marriage contract—the valid, the irregular, and the void. The valid is correct in both essence and attributes; the irregular is correct in essence but not in attributes; while the void is not correct in either. Similarly al Qarrāfi in al-Furūq describes Abu Hanifa's argument regarding the necessity for an intermediate class of contracts between the wholly valid and the wholly void in the following terms:

“ Abu Hanifa asserted that (in such cases) the primary state of the essence (of the contract) was free from a vitiating element and that the divine prohibition only concerned something extraneous to it. If, therefore, we regarded it as absolutely vitiated we should have equated an essence which contained vitiation (in itself) with one which was free from vitiation; while if we regarded it as absolutely valid we should have equated an essence which was free from vitiation in itself and its qualities with one which contained vitiation in its qualities. Now this is not permissible, since the equation of what harbours vitiation with what is free from vitiation is contrary to right principles. It is obvious, then, that primary state should be compared with primary state and attribute with attribute, and that we would say that the primary state of the essence is (in such cases) free from prohibition. But the primary state of the acts and contracts of Muslims is validity, until a prohibition supervenes: so this primary state (that is, validity) is established in the primary state of the essence and the attribute that befalls it (namely the prohibition) is established in the attribute, which is the addition containing the vitiating element. Thus the attribute, not the primary state, is vitiated. This is what was desired to be proved, and it is good law.” (al-Furūq, Vol. II. p. 82.)

^{page 360 note 1} Ibn Nujaym, al-Baḥr ul Rā'iq, Vol. 5, p. 16 ff. (See end of article.)

^{page 360 note 2} This doctrine of the “semblance” is considerably wider than appears in this article. Thus the punishment prescribed for zinā is held to lapse by reason of three different kinds of “shubha” classified respectively (according to the view attributed to Abu Hanifa) as (1)Shubha fi'l-mahall, (2)Shubha fi'l-fi‘l (sometimes also called “shubhat ishtibāh”), (3)Shubha fi'l-'aqd. Only (3), the “semblance in the contract”, has been treated in this article, but a few words about (1) and (2) may be useful.

Examples of (1), “semblance in the subject”, found in the Arabic texts include relations between a man and his son's slave girl, between a co-owner and his partially-owned female slave, and between a man and a wife whom he has finally divorced in implicit rather than explicit terms during the continuance of her ‘idda period. The principle which connects these varied examples is the fact that some actual proof of lawful right exists in each case. With regard to the son's slave this is based on the Prophetic maxim that “Thou and thine are thy father's” in the case of the partly owned slave on the fact of partial ownership; and in the case of the wife finally divorced by implicit terms on the fact that ‘Umar only regarded such a divorce as revocable, and her ‘idda period had not yet elapsed. In all these illustrations, therefore, the ” semblance“ of right is held to rebut the prescribed punishment in all cases, regardless of whether the parties actually concerned were or were not conscious of the illegality.

Examples of (2), the “semblance of the act”, mentioned in the texts include relations between a man and a slave girl owned by his wife, father, or mother; between a man and his triply divorced wife, or his wife finally divorced for a consideration, during the continuance of her ‘idda period; and of a man with a woman he genuinely mistakes for his newly wedded wife (cp. the classic instance of Jacob and Leah). In all these cases no valid claim of lawful right of any sort exists, and relations are in each case properly classified as zinā. If, however, the party concerned claims that he really believed, in the last example, that the woman was his lawful wife; in the case of the divorcees that the continuance of the ‘idda period and of certain resultant obligations of marriage made such relations lawful; and in the case of the slave girls that the right to their general services included the right to concubinage—then, and then only, will the prescribed punishment lapse in his individual case because of this slender “semblance ”.

It may be added that shubha in this context has sometimes been translated “error” (see Hamilton's Hidaya, Vol. VII, Chap. 2). This is probably attributable to the fact that the word came to be used in a subjective, as well as the normal objective, sense (see instances under 2 above): the very term “shubhai ishtibāh”, used as an alternative for “shublui fi'l-fi'l”, shows how the primary meaning of ‘resemblance’ has passed over to the secondary sense of ‘confusedness’. There is, however, a certain advantage in translating the word according to its primary meaning, “semblance”, throughout.

^{page 361 note 1} This, as we shall see, was not always understood by later commentators, particularly in the case of marriage with another's wife or with a man's own triply divorced wife. But al-Baḥr ul Rā'iq (vol. 5, p. 17) is explicit: “It is also shown that were a man to conclude a contract of marriage with another's wife, or his divorced or widowed wife during her ‘idda period, or his own triply divorced wife … in all these cases there would the more certainly be no statutory punishment on the grounds of such relations, by agreement, according to the clearer view. In the case of the Imam the reason is clear: while in the case of the Companions this is because the “semblance” is only destroyed, in their view, if there is general agreement regarding the illegality and the bar is perpetual. In the above instances the statement that there is no statutory punishment is because a discretionary punishment is obligatory if the man was aware of the facts: they held, indeed, that he should undergo a severe beating, the most severe discretionary punishment possible as a matter of lawful state policy.” (al-Baḥr ul Rā'iq, Vol. 5, p. 17.)

^{page 362 note 1} Vol. II, pp. 382 and 468–170.

^{page 362 note 2} Vol. II, pp. 541 and 938.

^{page 362 note 3} Vol. I, p. 323.

^{page 362 note 4} Vol. Ill, p. 184, and Vol. V, p. 17.

^{page 362 note 5} Vol. I, p. 323.

^{page 362 note 6} Vol. II, p. 938.

^{page 362 note 7} Vol. I, p. 401.

^{page 362 note 8} As an example of this misunderstanding, a short quotation may be given from Ibn ‘Ābidīn’s commentary on the Baḥr (Vol. 5, p. 17). “ It is said in Majma‘ ul-Fatāwa ‘ A man married his triply divorced wife, both being aware of the illegality, and she gave birth to a son. Al-Hāwī says that no prescribed punishment is applicable according to Abu Ḥanifa, and the paternity of the child is established—by contrast with the view of the Two Companions. The case is on a par with that of marriage of those within the prohibited degrees.’ ” This interpretation of the view of the Two Companions is totally incorrect.

^{page 362 note 9} See Ibn ‘Ābidīn on the Baḥr, in note above.

^{page 362 note 10} E.g. ‘Abd ul-Wahhāb Khallāf (al-Aḥwāl ul-Shakhṣīya), ‘Abd ul-Raḥmān Jazīrī (al-Figh ‘ala'l-Madḥḥib il-Arba'a), etc.