Developing modern Islamic Financial System via Ijtihad

Top 20 FREQUENT WORDS

islamic 107 legal 46 financial 33 cases 26 ijtihad 26 developing 24 qur 24 sunnah 22 research 21 shari 21 sources 21 muslim 20 overview 20 ratio 20 rights 20 training 19 centre 18 ijitihad 18 jurists 18 principles 18 reserved 18

DOCUMENT KEY POINTS

• the article seeks to explore the nature of islamic sources of law and the historical evolution of techniques and principles of law which led to the establishment of four major surviving schools of law in islam
• since many arabs who lived during the time of the prophet sa w were desert dwellers and or were influenced by the ways of desert water and direction leading to water place were essential to their life

• to this effect the shari ah has been described by a leading western scholar as the epitome of islamic thought the most typical manifestation of the islamic way of life the core and kernel of islam itself having said this it is to be noted that islamic law is not given to man ready made islamic law needs human involvement as to interpret the sources given by the lawgiver

• the legacy of islamic fiqh and various guilds of islamic law madhhab although muslim scholars and jurists agree that they are bound by the shari ah the interpretations of its requirements have differed historically according to various sectarian and schools of law and in modern times also according to differing views of how the shari ah be applied in the changed circumstances of present day societies
• that is to say that the human judgment which has been described as determinative of islamic substantive law is not a judgment made within a humanly established frame of reference it does not proceed from a human sense of equity or from a perception of previous human judgments

• occasionally the qur an lays down specific and detailed rulings to govern specific cases of law such as in the case of illustrating the shares of inheritors al nisa and the list of women whom a person cannot marry al nisa
• it usually relates that a person had such a question or problem or grievance or dispute and went to the prophet pbuh who gave such an answer or rules for such a remedy

• as there are many ways and methods of understanding both the qura an and the sunnah the disagreement is inevitable in islamic law and these varieties are well documented in the legacy of islamic law particularly in the writings of all major schools of islamic law
• the oldest legal school is the one that followed the iraqi tradition and was called hanafi after its founder abu hanifa died in ad although the school was named after a prominent local jurist abu hanifah its followers actually often showed greater deference to the views of two of his disciples abu yusuf d

• to the best of the writer s knowledge the legal theory developed by al shafi i is the best for areas of law which are fixed such as devotional matters and the like because al shafi i and his school of law was never involved in areas of law which are flexible and worldlyoriented as in the case the hanafi school of law

• as a matter of fact with the development of the classical schools of islamic law the study and discourse on the principles of law usul al fiqh started to articulate in the muslim world be it in the mosques or islamic inns of courts or universities or colleges as the case may be jtihad as a technical term originates from this area of discipline
• generally speaking the hanbali school leaned more on the tradition than science of law the hanbali school has dwindled in size to such a point that its adherents are scarcely found outside central saudi arabia

• while fiqh concerns itself only with whether an individual deed is lawful or not usul al fiqh or islamic legal theory is concerned with legal theories principles in the interpretation of legal texts methods of reasoning and of deduction the aim of which is to provide the legitimate bases and proofs for the legal rulings
• muslim jurists developed an muslim jurists developed an elaborate methodology to interpret the qur an and in fact the legal significance of the qur an cannot be properly understood without an appreciation of this methodology

• relatively speaking among all subsidiary sources qiyas or analogical reasoning is the most important and workable instrument the reason being that qiyas broadly speaking is a legal method for extending the law beyond what is stated in the authoritative legal sources or an extension of a precedent and not the establishment of a fresh ruling by itself
• the importance of qiyas or analogical reasoning is more obvious in commercial issues since this has the support from one of the established maxims that is the principle in mu ama ah islamic law of transactions is ratiocination and analogy ie a as fi a mu amalah al ta lil wa al qiyas

• from the fact that in the quranic verse the consumption of milk obviously forms part of the contract and that this element occurs also in other admissible contracts such as ariya loan of property without any charge and waqf endowment ibn taymiyyah drew the legal inference that the contract of ijarah may include the consumption of parts of the object a practice which is compatible to the original ruling in the qur an in the case of hiring or employing a woman for suckling purposes under the contract of ijarah hire
• by making recourse to this verse ibn taymiyyah attempted to refute the prevailing opinion that usufruct as an essential element of the contract of hire ijarah has to be understood in a narrow sense namely using a thing without reducing its substance

• however he departed from and disagreed with this logical consequence and instead adhered to istihsan to the effect that the produce should belong to the owner of the land and the owner of the land is bound to pay all necessary expenses of the cultivation to the cultivator
• developing modern islamic financial system via ijitihad an overview in commercial issues as in other delicate issues an accurate understanding difference between illah ratio decidendi and hikmah philosophy and objective of islamic law is inevitable because commercial issues have always close ties with moral and philosophical considerations

• ijtihad as a tool in developing islamic financial system as mentioned elsewhere the texts are limited while the incidents of daily life particularly in the area of commercial transactions are unlimited and it is impossible for something infinite to be enclosed by something finite
• therefore if a merchant sold a commodity to a purchaser without agreements as to the time or manner of payment and if was customary for merchants to obtain the price by weekly instalments then the contract of sale should be interpreted according to this particular custom

• in a more clear term one leading muslim jurist al amidi defines ijtihad as the total expenditure of effort in the search for an opinion as to any legal rule in such a manner that the individual sense within himself an inability to expand further effort as for developing islamic financial system the task of i tihad it is respectfully submitted is not confined merely to searching for a legal status
• developing modern islamic financial system via ijitihad an overview because even though these given texts and premises are humanly conceived muslim jurists have to strive to express what they perceive to be allah s law since the shari ah was not given to man ready made as in the case of modem acts and enactments

• the form of argument is a b c d are cases which have the common characteristic x and the rule j all cases which have the characteristic x must have the rule j s has the characteristic x therefore s has must have the rule j
• the prophet pbuh was said to have prohibited the exchange of gold for gold silver for silver date for date wheat for wheat salt for salt and barley for barley unless they were equal in quantities and delivered immediately

• therefore to promote the islamic investment as well as to satisfy the public interest of the muslim society at large in the case of damage or disaster and the like it is respectfully submitted that takaful policy irrespective of whether it is for family takaful or general takaful may be made permissible if not mandatory

• assuming that the asset intended to be converted into cash by virtue of securitisation is a commercial aircraft the special purpose vehicle spv could effect the purchase of the aircraft through for example bay al waf conditional sale in which case the seller will be given a discretion to repurchase the aircraft at an agreed price within an agreed time frame

• a a a a a making takaful mandatory from objectives of shari ah maqasid al shari ah perspective paper presented at labuan international summit on takaful insurance organised by bimb institute of research and training sdn
• the islamic concept of liquidity paper presented at the international islamic capital market conference organised by the securities commission kuala lumpur th

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DOCUMENT WORD ANALYSIS

Main Category

AlHuda Material\islamic banking

KeyWords

islamic shariah vol securities bai based contract jurists council commission advisory sac dar price resolutions jurisprudence permissible gharar principle syariah

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DOCUMENT REFERENCES

Number of Pages

18

Published Date

2001-07-16 09:52:41

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