that the passage in the Mudawwana should be understood according to the distinction Ibn Habīb reported as Ibn al-Qāsim’s own position and his narration from Mālik—a distinction Ibn Habīb himself adopted and approved.
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This distinction rests not on analogy but on juristic preference. Reasoned analysis and analogy require uniform treatment of all invalid investment partnerships: either the customary profit share in a comparable partnership or the customary remuneration for comparable work, without distinguishing between cases. As for interpreting the Mudawwana as we related from Shaykh Abū Ja‘far—may Allah have mercy on him—that interpretation has no basis in reasoned analysis or analogy, nor any justification through juristic preference. For those who recognize and apply juristic preference in legal rulings do so only because particular cases possess distinctive features that warrant departing from the general principles to which they would otherwise be assimilated. Such features are absent from the question before us.
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The rationale for the position that the working partner in every invalid investment partnership receives the customary remuneration for comparable work, without distinction, is that an investment partnership is a hiring arrangement involving contractual uncertainty. The working partner works with the funds in return for a share of whatever profit they yield, if there is any profit. It was permitted as an exception to the general principles only out of necessity, and is therefore permissible only when concluded in its proper, prescribed form. If concluded otherwise, it is not an investment partnership, even if the parties call it one. Rather, it is an invalid hiring arrangement, for which the working partner receives the customary remuneration for comparable work. It is an investment partnership only when the parties proceed according to its prescribed rules.
Consider: if someone engaged another under an investment partnership to work with his funds until a specified date, in a specified activity, for a specified payment, this would be a hiring arrangement, not an investment partnership. Calling it an investment partnership therefore has no significance unless it is conducted according to its prescribed rules.
Moreover, an investment partnership is a valid contract that entitles the working partner to a stipulated consideration for his work. If the contract is invalid, he must receive the customary remuneration for his work, since that work cannot be restored. The analogous cases are an invalid hiring arrangement that becomes irreversible through performance of the work, or an invalid sale in which the sold item can no longer be returned.
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The rationale for the position that every such arrangement is assessed according to the customary profit share in a comparable investment partnership, without distinction, is that an investment partnership