Chapter Summary

This chapter examines the roots of sharī‘ah in order to provide a solid theoretical foundation that is needed for understanding Islamic jurisprudence in general and Islamic transactional law in particular. Without this minimum understanding of sharī‘ah, it would be rather difficult to discuss sharī‘ah governance. The chapter begins by defining key terms, such as sharī‘ah, the Qur’ān, sunnah, and fiqh. Next, it discusses ijtihād and the differences in juristic opinions that could result from undertaking such an activity. Thereafter, the chapter explores obligation-creating and declaratory sharī‘ah rulings and the subject of these rulings. The characteristics and objectives of sharī‘ah are investigated in order to provide a context for these rulings. Subsequently, the chapter explores the Islamic economic system and its characteristics, in addition to identifying the objectives of sharī‘ah relating to property.

1.1 Sharī‘ah, the Qur’ān, and Sunnah

Sharī‘ah¹ etymologically means the source of drinking water,² and shar‘ means to ordain.³ Muslims believe that sharī‘ah is an ethical way of life revealed by God to secure the success (falāh) of creation in this world and the next.⁴ It does so by promoting what will benefit beings and protecting against that which will harm them.⁵ God, the Divine, uses several derivatives of the word sharī‘ah when addressing His final messenger to creation, prophet Muhammad (pbuh),⁶ in the Qur’ān.⁷

Qur’ān etymologically means the recited one.⁸ Terminologically speaking, Qur’ān is defined as “the communication of God the Exalted, revealed to prophet Muhammad (pbuh), whose recital is considered worship to God.”⁹ Muslims believe that the Qur'ān is the word of God, and that its words and meanings were revealed to prophet Muhammad (pbuh) over a 23-year period.¹⁰ They therefore take it to be a holy book of guidance and legislation,¹¹ and see an obligation to ponder over it, deduce from it, and act upon it.¹²

Imām Al-Shāibi observes that Sharī‘ah was revealed not only to illuminate a way for creation to glorify and worship their Creator, but also to stop people from aimlessly following their whims.¹³ In commenting on the concept of “worship,” Ibn Taimīyah (d. 728 ah¹⁴/1327 CE) states that it encompasses two aspects: first, abiding by sharī‘ah with humility towards the Divine; second, doing so with a loving heart.¹⁵ Ibn Taimīyah identifies the realm of worship as encompassing everything, whether said or performed, that pleases the Divine.¹⁶ This entails carrying out prescribed duties and staying clear of outlined prohibitions. He gives examples of acts of worship that extend beyond the main rituals. These include truthfulness, trustworthiness, being dutiful to one’s parents, honoring covenants, being kind to neighbors, orphans, destitute people, wayfarers, and animals, as well as patience, gratitude, being content with God's decree, and dependence on the Divine.¹⁷ He adds that pursuing the means necessary for achieving God's obligations is an act of worship in itself. In essence, every act can be considered an act of worship as long as the individual's intention is to please the Divine and the act is in line with the teachings of prophet Muhammad (pbuh). For example, the brain can contemplate, the tongue can call to good and prevent evil, the heart can love and fear God, etc. Such a holistic understanding of worship is meant to develop a strong personal relationship between the individual and the Divine that holistically covers the different avenues of life.¹⁸

While sharī‘ah offers guidance to creation to steer them in the direction of that which is beneficial and to protect them from what is detrimental, it is not meant to be burdensome.¹⁹ Ibn Kathīr (d. 674 AH/1372 CE) comments in his exegesis on the verse which reads, “He has chosen you and has not placed upon you in the religion any difficulty” (22:78), by saying:

He has not given you more than you can bear and He has not obliged you to do anything that will cause you difficulty except that He has created for you a way out. So, the salah [prayer], which is the most important pillar of Islam after the two testimonies of faith, is obligatory, four rak’as [units] when one is settled, which are shortened to two rak’as when one is traveling … And he [prophet Muhammad (pbuh)] said to Mu‘ādh and Abu Mūsa, when he sent them as governors to Yemen: Give good news and do not repel them. Make things easy for the people and do not make things difficult for them.²⁰

This clement approach of the Divine is embraced by prophet Muhammad (pbuh), as evident in his sayings. For example, “He who is deprived of gentleness is, in fact, deprived of all good.”²¹ Attesting to this, the Divine says: “And We have not sent you, [O Muhammad], except as mercy to the worlds” (21:107). This mercy is embodied in the prophet relieving people from their burdens through his teachings. ‘Aishah (d. 58 AH/678 CE), the wife of the prophet (pbuh), reported: “Whenever the prophet was given a choice between two matters, he would [always] choose the easier as long as it was not sinful to do so; but if it was sinful he was most strict in avoiding it.”²² After reflecting on sharī‘ah, Ibn Qayyim (d. 751 AH/1350 CE) observes:

Sharī‘ah is built and founded on wisdom and people’s welfare in this life [on earth] and the afterlife [hereafter]. It is all justice, mercy, benefits, and wisdom. So, any ruling that results in an outcome that replaces justice with injustice, mercy with its opposite, welfare with mischief, and wisdom with futility is not from sharī‘ah, even if it is interpreted in a way that tries to make it a part of it.²³

Moving from the wider meaning of sharī‘ah to a more specific definition, the Islamic sharī‘ah has been defined as the laws that God revealed to prophet Muhammad (pbuh) in the Qur’ān and sunnah.²⁴ Sunnah etymologically means a way.²⁵ Terminologically, it refers to the teachings of prophet Muhammad (pbuh), apart from the Qur’ān, communicated through his sayings, actions, and tacit approvals.²⁶ While the Qur’ān is the exact meanings and words of God, adīth is the meanings of God but in prophet Muhammad’s words.²⁷ Some jurists believe that the term sharī‘ah comprehensively includes revelation relating to all topics such as creed, morals, etc., while others disagree and restrict the term to practical rulings²⁸ of conduct (al-akām al-‘amalīyah).²⁹ Approximately 500 out of 6235 verses of the Qur’ān relate to these practical rulings. The majority of the Qur’ān speaks about parables of past nations, the reality of life on earth and the hereafter, creed, morals, and other aspects.³⁰ Ibn ‘Abbās (d. 68 AH/687 CE) limits sharī‘ah to the Qur’ān and minhāj to sunnah.³¹

Even though the Islamic sharī‘ah came with new rulings, it was not all new, as it approved some of the rulings of society at the time, so long as they did not contradict the principles of sharī‘ah. The Arabs, like any other people, had their own mores of social, economic, and political dealings. Their reference in these dealings included established customs, inherited traditions, principles from previous religions, and norms from nearby nations such as the Persians and the Romans. They did not have a court system, but voluntarily resorted to venerated leaders of tribes or to fortune tellers. These judicators ruled based on the known customs of the people. Furthermore, if a party was convicted yet chose not to abide by the judgment, then matters would escalate beyond retaliation against the culprit to include the individual’s tribe. In other words the counterparty would summon their tribe and wage war against the offender’s tribe. Inevitably, conflicts and wars arose. Injustice was imminent in an environment in which each tribe did what was best for its interests. Amidst this discord the prophet was sent to reform society. Thus, he confirmed some customs that were in place at the time, prohibited certain beliefs and practices, and initiated new ideas and obligations. For example, he affirmed the Arab’s prohibition of marrying one’s mother, approved bequests, lease, partnership, mudārabah,³² and salam³³ contracts, as well as pledges such as pawning personal property. The prophet prohibited other types of marriage contracts that existed such as nikā al-shighār in which one man would marry the daughter of another on condition that the latter would marry the daughter of the first. He also prohibited fathers from taking their daughters’ dowry, and granted women and children the right to inheritance that they were barred from traditionally, as it was limited to male agnate relatives. The prophet banned specific forms of transaction, such as bay‘ al-mulāmasah wherein a person who touched a garment had to purchase it. He also established the concept of trusts, which was not known previously. Even though sharī‘ah came with many new notions and obligations, it did not ignore the ways that existed in society at the time, as long as they were equitable and beneficial.³⁴

1.2 What is Fiqh?

Fiqh etymologically means a deep understanding of something.³⁵ The word originally had a very wide terminological meaning; however, scholars narrowed down its scope over time. Initially, fiqh meant knowledge of sharī‘ah, including matters of creed, morals, and actions. Within this context Abu anīfah (d. 150 AH/767 CE) defined fiqh as a soul’s knowledge of its rights and duties; moreover, he called the fiqh of creed (‘aqīdah) the greatest type of fiqh.³⁶ The meaning of fiqh, however, became more restricted as scholars excluded from its definition matters of creed, which are of primary importance, and limited its domain to practical and not spiritual acts of conduct.³⁷ The revised definition became knowledge of secondary, practical sharī‘ah rulings pertaining to conduct that are derived from the detailed evidences of sharī‘ah.³⁸ While fiqh addresses the norms of Islamic law, uūl al-fiqh addresses the sources, their priority, and methods for deducing legal rulings from them.³⁹

According to uūl al-fiqh jurists, “sharī‘ah rulings” are Islamic legal rulings (akām) that can be terminologically defined as “communication from Allah [God], the Exalted, related to the acts of subjects [mukallafūn] through a demand or option or through a declaration.”⁴⁰ Four essential elements are required for a sharī‘ah ruling to exist. The first is the Lawgiver (a-kim). The second is the mukallaf – any individual with legal capacity upon whom worship has been prescribed – to which the ruling pertains. The third is the actual ruling issued by the Lawgiver concerning the act of the mukallaf. The fourth is the subject of the sharī‘ah ruling.⁴¹

Muslim scholars agree that the source of sharī‘ah rulings for mukallafūn is God the Lawgiver. This is the case whether these rulings have been explicitly stated in the Qur’ān, revealed to the prophet Muhammad (pbuh) in sunnah, or deduced using independent juristic reasoning (ijtihād) that is approved by the Lawgiver and grounded in Qur’ān and sunnah.⁴² Because these rulings stem from sharī‘ah and its evidences, the Qur’ān declares, “Legislation is not but for Allah” (12:40).

The second element of a sharī‘ah ruling is the mukallaf. Mukallafūn in this context are adults who can understand God’s communication from the sources or by learning from scholars.⁴³ Furthermore, they must possess a sufficient level of legal capacity for what they have been commissioned to do. There are two types of legal capacity: capacity for acquisition (ahlīyat al-wujūb)⁴⁴ and capacity for execution (ahlīyat al-adā’). Through the former capacity, a person possesses full rights and is required to execute certain obligations that are within one’s capability such as paying for goods purchased, compensating parties for any property that one has damaged, and almsgiving (zakāh).⁴⁵

Legal capacity for execution is the “capacity of a human being to issue statements and perform acts to which the Lawgiver has assigned certain legal effects.”⁴⁶ In other words, it is the capacity to exercise rights and obligations. Intellect is the legal basis that entitles a person for this type of capacity, since a person with intellect has the ability to comprehend the communication of God. Since intelligence is a hidden quality, an objective sign of having intellect is the onset of puberty (bulūgh), which is evidenced by physiological changes that occur in the body. In the absence of these changes, sharī‘ah presumes that after fifteen lunar years a minor becomes pubescent.⁴⁷ Liability for this capacity develops over the course of three stages.⁴⁸ An adult is accountable for his/her words and acts, with the exception of the circumstances mentioned below in which the person’s intellectual faculties are affected.

A person’s legal capacity for execution may be impacted by natural or acquired causes thereby invalidating it, diminishing it, or leading to a modification of some sharī‘ah rulings. Natural causes include minority, insanity, idiocy, forgetfulness, sleep, unconsciousness, and others. Acquired causes include ignorance, indiscretion, intoxication, coercion and others.⁴⁹ Each of these causes has its own ruling. For example, insanity invalidates a person’s legal capacity for execution since the person’s mental capabilities do not allow him/her to understand God’s communication. Therefore, any transaction entered into with an insane person is void. On the other hand, “idiocy” as a form of dementia that does not reach madness, diminishes but does not invalidate capacity for execution. Note that injunctions relating to minors or insane individuals found in texts are not meant to address these persons per se, but are instructions to their parents or guardians regarding the best ways to bring up these persons.⁵⁰ Finally, in certain occasions a person’s actions can lead to an amendment of the original sharī‘ah ruling, even though active legal capacity is not affected. For example, sharī‘ah grants people the freedom to enter into lawful transactions, but if a person is feebleminded and acts in prodigal ways that do not preserve his/her property then a new sharī‘ah ruling applies to such an individual. In this scenario, an Islamic court may issue a judicial order to prohibit the person from entering into financial transactions in order to protect the rights of others, such as children and creditors.⁵¹

Although God’s communication covers many aspects, the portion we are concerned with in fiqh is the conduct of mukallafūn. “Conduct” means actions that mukallafūn practically perform excluding those of the heart. Thus, God’s communication relating to creed and morals is excluded.⁵²

In the definition of fiqh the term “acquired” refers to the way these rulings are derived using different methods for ijtihād. Mujtahidūn, independent jurists who undertake the challenge of ijtihād, deduce rulings pertaining to aspects of worship rituals and transactions from the Qur’ān and sunnah. The most receptive domain for ijtihād is transactions, which in the present day refers to civil law and includes commutative and non-commutative contracts, equity, trusts, matrimony, estate administration, and court dispute settlement rules.⁵³ Three other areas of fiqh with a distinct corpus of law are criminal law, constitutional and administrative law, and international relations law, as referred to in modern taxonomy.⁵⁴

Given that the majority of the Qur’ān has probable linguistic implications or meanings (anni al-dalālah),⁵⁵ jurists have substantial authority to formulate the law as key players of the ijtihād process.⁵⁶ However, as human judgment plays a clear role here, the fiqh that results is prone to error and the rulings are non-binding unless they reach a paramount level of acceptance from other jurists or consensus.⁵⁷ There is a second part of fiqh that consists of texts that have definite authenticity and linguistic meaning (qat‘i al-thubūt wa al-dalālah) such as the details of worship rituals. In general, this part of fiqh is error free and is considered as detailed evidences from sharī‘ah.⁵⁸

Referring back to the definition of fiqh mentioned earlier, the word “detailed” confines this process to specific references from the Qur’ān and sunnah. Finally, “evidences” are the “sources and procedures that a school of law⁵⁹ endorses in order to derive rulings.”⁶⁰ Before naming some of these evidences we should explore the historical progression of ijtihād as this will help clarify why differences of juristic opinion have long existed in fiqh.

1.3 Performing Ijtihād and Differences in Juristic Opinions

During the reign of the first two caliphs Abu Bakr Al-Siddīq (d. 13 AH/634 CE) and ‘Umar ibn Al-Khaāb (d. 23 AH/644 CE), ijtihād was predominantly performed by jurists in a collective manner. When a situation that required a new ruling arose, the caliph would ask jurists to convene and consult with them. The first four caliphs in particular were savant jurists. When the jurists reached consensus, the caliph would adopt their opinion. If consensus was not reached, however, the caliph would select from among the opinions those most befitting the people. Longstanding differences of opinion on issues among jurists were less common during that period for several reasons. First, it was feasible for them to discuss their opinions and evidences face-to-face as they lived in Madinah, which had unified customs. Second, they dealt with real life occurrences and ignored hypothetical situations. Third, they were very cautious about giving juristic rulings due to the significance of such a task.⁶¹ The companions of prophet Muhammad (pbuh) performed ijtihād during his lifetime and thus gained expertise in doing so. Two instances illustrate this point.

The first involves Mu‘ādh ibn⁶² Jabal (d. 18 AH/639 CE), whom the prophet sent to Yemen. Before sending him, the prophet asked:

“How will you judge when the occasion of deciding a case arises?” He replied: “I shall judge in accordance with Allah’s Book.” He asked: “(What will you do) if you do not find any guidance in Allah’s Book?” He replied: “(I shall act) in accordance with the Sunnah of the Apostle of Allah (pbuh).” He asked: “(What will you do) if you do not find any guidance in the Sunnah of the Apostle of Allah (pbuh) and in Allah’s Book?” He replied: “I shall do my best to form an opinion [through ijtihād] and I shall spare no effort.” The Apostle of Allah (pbuh) then patted him on the breast and said: “Praise be to Allah Who has helped the messenger of the Apostle of Allah to find something which pleases the Apostle of Allah.”⁶³

Thus, the prophet approved Mu‘ādh’s intent to immerse himself in ijtihād when necessary. The second example is the incident relating to praying ‘asr (afternoon prayer) at Banū Quraydhah. The prophet ordered his companions not to perform ‘asr except at this location. A group of companions interpreted this to mean hurrying on their journey in order to perform the prayer at the designated location. According to such an understanding, if the time for prayer came and they had not yet reached their destination, then they would stop and pray. This is what this group of companions ended up doing. The second group interpreted the directions more literally: ‘asr was to be observed at Banū Quraydhah irrespective of the official timing for its performance, and whether such timing had started or ended. This group performed ‘asr after they arrived to Banū Quraydhah, even though it was nighttime and the time for the prayer had long passed.

The point is that both groups performed ijtihād to understand the prophet’s directions and each group understood the prophet’s command in a particular way. The first group deduced an implicit meaning in the prophet’s words, while the second interpreted his instructions more literally. Nevertheless, when the prophet was informed about these varying interpretations, he did not rebuke either party and accepted them both. Had there been a mistake in either interpretation, then the prophet (pbuh) would have corrected it. During the prophet’s time the opinions of companions reached by way of ijtihād were either approved or corrected by him, thereby making them into law.⁶⁴ Moreover, the ijtihād of companions during the lifetime of the prophet was not seen as an independent source of fiqh. After his death, however, it became so.⁶⁵

Some companions were known to engage in ijtihād more than others because of their variable abilities, the differing nature of their juristic personalities, and their way of thinking.⁶⁶ For example, the fear of making a mistake in a juristic ruling may have led one jurist to restrict his ijtihād within very confined restraints, while the same fear may never have limited a second jurist in freely exploring the ratio legis (‘illah) to extrapolate rulings. The most renowned mujtahids among the companions were ‘Umar ibn Al-Khaa^-b, ‘Ali ibn Abi-Tālib (d. 40 AH/660 CE), ‘Abdullah ibn Mas‘ūd (d. 32 AH/652 CE), ‘Aishah bint Abu Bakr, Zayd ibn Thābit (d. 45 AH/665 CE), and ‘Abdullah ibn ‘Abbās. From the reign of the second caliph onwards, Islam spread widely to places such as Damascus, Iraq, Egypt, and Persia.⁶⁷ These territorial expansions led to new complications for mujtahids.

After the death of the first four caliphs, a new era started and continued until the beginning of the second hijrī century. The companions along with their successors followed in the footsteps of the caliphs, but things became a lot more challenging. Jurists traveled to new lands and were welcomed by the public who came to them with questions. Jurists were therefore exposed to new situations and circumstances that had not occurred during the prophet’s lifetime. Also, the milieu and traditions of each territory often differed quite drastically from the others. Thus, jurists engaged in ijtihād while taking into perspective the unique contextual circumstances. Inevitably they reached different rulings on issues because of their dissimilar environments and because collective ijtihād had become unfeasible. Other reasons also led to these juristic differences in opinions including:⁶⁸

• varied understandings of certain verses of the Qur’ān and of some aādīth;⁶⁹
• variances in the memorization of aādīth by different scholars;⁷⁰
• disagreement on the strength of certain narrators of adīth;
• different levels of understanding of the objectives of sharī‘ah;
• political differences that occurred towards the end of the reign of the third caliph ‘Uthmān ibn ‘Affān (d. 35 AH/655 CE) and during the reign of the fourth caliph ‘Ali ibn Abi-Tālib (d. 40 AH/660 CE).

Nevertheless, each juristic opinion had its own logic and evidences. Madinah, Makkah, Basra, Kūfa, Fustat, and Damascus became centers for juristic rulings and for teaching. Eventually students adopted the methodology and opinions of their teachers that were well suited to their localities. For example, in Madinah they followed ‘Abdullah ibn ‘Umar (d. 73 AH/692 CE) and ‘Abdullah ibn ‘Abbās. In Kūfa they followed ‘Abdullah ibn Mas‘ūd (d. 32 AH/652 CE). In Basra they followed Abu Mūsá Al-‘Ash‘ary (d. 44 AH/664 CE) and Anas ibn Mālik (d. 93 AH/711 CE). In Damascus they followed Mu‘ādh ibn Jabal. In Fustat they followed ‘Abdullah ibn ‘Amr ibn Al-‘Ā (d. 65 AH/684 CE).⁷¹ This added to the differences of opinion among jurists. In an effort to go back to the texts to derive rulings, jurists resorted to the narration of aādīth, and this became quite widespread. Some ill-intentioned individuals fabricated aādīth to give credibility to their ideologies and practices and ruin the authority of adīth.⁷² Consequently, jurists became hesitant to readily accept aādīth at face value. Unlike the past they had to scrutinize meticulously the chain of narrators and the content of aādīth to determine their authenticity before extracting rulings from them.

In Iraq, jurists placed heavy restrictions on the acceptance of aādīth and this led them to expand analogical reasoning.⁷³ The pressing need of the jurists led to the emergence of a new discipline that focused on studying the biographies of adīth narrators and ascertaining their credibility. Over time two schools of thought began to take shape, the school of adīth in Madinah, and the school of opinion (ra’y) in Kūfa. While both schools agreed on sunnah as a primary source of fiqh, they differed on analogical reasoning. The former school adopted a literal interpretation of aādīth and distanced itself from using analogical reasoning to form rulings, except at times of dire need. This school’s jurists dealt with real life situations and were perfectly content to abstain from giving rulings if no texts were found. In contrast, the school of ra’y actively pursued analogical reasoning in the absence of texts. They argued that since sharī‘ah was revealed for the well-being of people, it became incumbent upon scholars to search for the ratio legis (‘illah) of different rulings and the objectives of the law in order to deduce new rulings on their basis. Its jurists, therefore, opined on both real and hypothetical situations.

As mentioned earlier, the students adopted the methodology of their teachers. Thus, those who learned from Abdullah ibn ‘Umar in Madinah became proponents of the first school. In contrast those who learned from ‘Abdullah ibn Mas‘ūd in Kūfa became proponents of the second school. Another reason these two schools gravitated to their points of view is that Madinah had no shortage of credible narrators of adīth. Much of the revelation was revealed there and many companions lived and died in Madinah. Kūfa on the other hand had a dearth of adīth and significantly fewer companions than in Madinah. Furthermore, fabrication of aadīth made things worse and resulted in jurists resorting to wider use of analogical reasoning. A third reason is that life in Kūfa was marked by much more vicissitude than in Madinah; furthermore, Kūfa’s ethnic population was more diverse than that of Madinah. That is not to say that there were not jurists of ra’y who resided in Madinah and vice versa. For example Rabī‘ah ibn Abi ‘Abdurahmān (d. 136 AH/753 CE), the teacher of Imām Mālik (d. 179 AH/795 CE), lived in Madinah and was known as Rabī‘ah “the opinionated.” ‘Āmir ibn Sharabīl (d. 106 AH/724 CE) lived in Kūfa and was a martinetish muaddith. Sa‘īd ibn Al-Musayyib (d. 94 AH/712 CE), one of the seven renowned jurists of Madinah, led the school of adīth, while Ibrāhīm Al-Nakha‘ (d. 96 AH/714 CE), the student of ‘Abdullah ibn Mas‘ūd and the instructor of Imām Abu anīfah’s teacher, led the school of ra’y. This era ended without there being a formal compilation of aadīth, although the caliph ‘Umar ibn ‘Abdul‘azīz (d. 101 AH/719 CE) attempted to do so.⁷⁴

The golden age of ijtihād started from the beginning of the second hijrī century and ended in the mid-fourth hijrī century.⁷⁵ Fiqh flourished during this era for several reasons.⁷⁶ First, Muslim communities extended from China to Spain and Muslims were eager to learn about the rulings of sharī‘ah. Thus, mujtahids expended considerable effort to deduce rulings that would accommodate the circumstances of their localities. Also, the ‘Abbāsid caliphs were keen on implementing sharī‘ah, so they appointed jurists as advisers and encouraged scholars to conduct research. For example, the caliph Hārūn Al-Rashīd (d. 193 AH/809 CE) sought the advice of his chief justice Abu Yūsuf (d. 182 AH/798 CE) on sharī‘ah-compliant financial policies, and asked him to write on the topic. This led to Abu Yūsuf writing his magnum opus, Al-Kharāj, which is a treatise on tax law and fiscal policies. Additionally, scholars of adīth formally compiled narrations of the prophet (pbuh) and classified the strength of the narrators. This facilitated the task of ijtihād for jurists. Another major factor of success in this era was the emergence of great jurists who were credited with outlining the different methods for deriving laws.⁷⁷ These scholars’ thoughts led to the establishment of legal schools (madhāhib) that posthumously carried their names. Four main Sunni schools that have continued to shine until the present day are the anafi, Māliki, Shāfi‘i, and Hanbali schools.⁷⁸ Although the evidences endorsed by these legal schools vary, the Qur’ān and sunnah⁷⁹ are undisputed. Disputed evidences include consensus (ijmā‘), a companion’s opinion (ray ‘al-aāby), analogy (qiyās), unrestricted interests (maāli mursalah), juristic preference (istisān), blocking the means (sadd al-dharā’i‘), custom (‘urf), previous peoples’ sharī‘ah (shar‘ man qablanā), and presumption of continuity (istiāb).⁸⁰ While juristic differences of opinion continued during this era, scholars wrote tomes that documented each school’s fiqhi rulings. Such juristic differences remain within the realm of applying the law and not within the principles of the law.⁸¹ In other words, none of these schools is in breach of agreed-upon teachings.⁸² The rich fiqhi scholarship that accumulated still serves as a major reference for scholars to this day.

The divinely revealed sources – Qur’ān and sunnah – are considered the core of sharī‘ah and its primary sources. The procedures for deducing fiqhi rulings serve as secondary sources of sharī‘ah and are recognized by it.⁸³ To help mujtahids in their challenge of deriving rulings, Imām Al-Shāfi‘i (d. 204 AH/819 CE) wrote in great depth on the discipline of uūl al-fiqh, which ultimately leads to fiqh.⁸⁴ The main difference between scholars of uūl al-fiqh and scholars of fiqh is that the former focus on finding aggregate evidences and maxims, which set up the framework used by a mujtahid in deriving rulings, while the latter concentrate on specific evidences that fuqahā use to assign sharī‘ah rulings to practical acts of conduct.⁸⁵

1.4 Sharī‘ah Rulings

The third essential element needed for a sharī‘ah ruling to exist is the actual ruling. This is a profound and important topic about which jurists have written in great detail. We will briefly introduce it and invite those interested in learning more to read specialized writings. Uūl al-fiqh jurists have divided sharī‘ah rulings into two main categories: obligation-creating (ukm taklīfi) and declaratory rulings (ukm wa‘ī).

1.5 The Subject of a Sharī‘ah Ruling

Now that we have finished discussing the actual ruling issued by the Lawgiver concerning the act of the mukallaf, we will move on to the fourth element, the subject of a sharī‘ah ruling: the act of the mukallaf. Such an act can assume one of five rulings: obligatory, forbidden, recommended, reprehensible, or permissible. For example, the Divine speaks about spending lawfully earned income and this is a recommended act: “O you who have believed, spend from the good things which you have earned and from that which We have produced for you from the earth” (2:267). Although sometimes the subject is not the mukallaf’s conduct per se, in such situations it is closely related to it. Let us examine the declaratory ruling found in the following verse: “Establish prayer at the decline of the sun [from its meridian]” (17:78). The verse mentions a clear cause for establishing prayer, namely, the decline of the sun from its zenith. This is something that the mukallaf has no control over. This cause, however, has a direct impact on the mukallaf’s obligatory act of establishing prayer. From this example we can see that the declaratory ruling relates to the mukallaf’s conduct in an indirect manner. How? The declaratory ruling relates to the obligation-creating ruling, and the obligation-creating ruling relates to the act of the mukallaf. Therefore, the declaratory ruling relates to the mukallaf’s conduct. It is also possible for the declaratory ruling to be directly related to the act of the mukallaf as in the following verse: “O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles” (5:6). The verse speaks about ablution, which is not only a condition for establishing prayer, but it is also an act in itself. In short, regardless of whether the sharī‘ah ruling is obligation-creating or declaratory, its subject is the mukallaf’s act, which may be performed by the individual’s heart, tongue, limbs, etc.¹⁰⁰

There are three conditions necessary for establishing an obligation on a mukallaf. The first condition is that the mukallaf must have complete knowledge of the act, including its conditions, pillars, and how it is to be carried out. This is very logical as it is hard to expect a mukallaf to perform an act without knowledge of it. Therefore, holistic Qur’ānic injunctions that do not delve into details are insufficient for creating obligations until they have been expounded by the prophet (pbuh).¹⁰¹ For example, God says, “establish prayer” (2:43). To facilitate the establishment of prayer the prophet (pbuh) instructed his followers to do the same: “pray as you have seen me praying.”¹⁰²

The second condition is for the mukallaf to know with certainty that the obligation emanates from the Divine so that the person could abide by it with confidence that doing so is in line with the commands of the Creator. For this reason jurists always provide textual evidence to corroborate sharī‘ah rulings. One has to be careful here not to misconstrue the meaning of this condition. Just because a person does not strive to learn about these obligations does not mean that the individual is exempt from them. What is meant by knowledge here is the ability to learn and such ability is fulfilled when the person has the capacity and intellect to learn. Earlier, when discussing the second element of a sharī‘ah ruling, we mentioned that from puberty or the age of pubescence onwards an adult possesses complete capacity for execution. Thus, the individual is presumed to know their obligations and is accountable for their words and acts, so long as the person’s capacity for execution has not been impacted. In other words, it is the mukallaf’s duty to understand God’s communication either directly from the sources or indirectly by learning from scholars. Being ignorant about the law does not constitute a valid excuse for being exempt from the obligations.¹⁰³

The third condition is that the mukallaf must be capable of either performing or avoiding the act.¹⁰⁴ Thus, the act cannot be impossible such as asking a person to fly without the use of any apparatus or requesting an individual to do opposing behaviors concurrently such as being awake and sleeping.¹⁰⁵ Moreover, a mukallaf cannot be charged with the onerous task of ensuring that another mukallaf performs their own obligations, except in the case that such individual falls under the responsibility of the mukallaf.¹⁰⁶ Nevertheless, the person is expected to provide good advice to others. Also, a required act must not contradict with the mukallaf’s innate nature because the individual does not have control over that. For example, it is unreasonable to ask a person not to feel sad when their loved one passes away, since grieving at such a time is natural. Likewise, it is perfectly natural to feel fear during a war. Sometimes injunctions may seem to contradict this principle, but in reality they instruct the mukallaf to practice temperance and to funnel one’s emotions in positive and productive ways. Here is a verse that illustrates this point: “No disaster strikes upon the earth or among yourselves except that it is in a register before We bring it into being – indeed that, for Allah, is easy, order that you not despair over what has eluded you and not exult [in pride] over what He has given you” (57:23). This verse does not mean that the mukallaf should not mourn when calamity strikes, nor not be happy when good occurs; on the contrary, these are natural and permissible feelings to express. The objective of this injunction is to pacify the irate person who may lose hope and faith, and to mollify the happy individual who may become pompous. In essence it advises the mukallaf to practice equanimity.¹⁰⁷

anafis stipulated a fourth condition: a condition necessary for the fulfillment of an act must occur in order for the act to be valid. The majority of scholars have disagreed with the anafis on this.¹⁰⁸ Delving into the details of this disagreement is beyond the scope of this discussion.

Staying within the realm of the subject of a sharī‘ah ruling, the mukallaf’s conduct, jurists have divided these acts based on the holder of the right for each act. Understanding this classification of rights is important because of practical considerations, such as the procedure for application of each particular sharī‘ah ruling. Four main categories of rights emerge: (1) the right of the Divine alone; (2) the right of man alone, i.e. the right of humans; (3) the right of the Divine which coexists with the right of man with the former being predominant; and (4) the right of the Divine which coexists with the right of man with the latter being predominant.¹⁰⁹

Acts in which the sole right-holder is the Divine are those that protect the interests of the general public and not those of a particular individual per se. Moreover, they are attributed to God not because He needs or benefits from them, but to raise their status because they provide society with immense benefits and protect it from severe harm. On a practical level, proving these rights does not require litigation. No individual or authority can pardon someone convicted beyond doubt of committing an offense against the rights of the Divine. This demonstrates how vital this group of rights and their corresponding acts are for the maintenance of an upright society, since nobody is entitled to interfere in upholding justice with regards to them. Jurists have subdivided this category of rights into eight distinct segments:¹¹⁰

1. rights involving mere worship rituals free from financial liability such as prayer;
2. rights involving worship rituals with financial liability such as the charity given at the end of the month of fasting, Ramaan (adaqat al-fir);
3. rights involving financial liabilities with a worship component, with the latter being smaller than the former such as the tithe imposed on agricultural crops;
4. rights involving financial liabilities with an element of punishment such as the kharāj duty on land;
5. rights involving utter punishments such as the penalty for piracy;
6. rights involving imperfect punishments such as barring a murderer from inheriting the wealth of the person he or she murdered;
7. rights wavering between punishments and worship rituals such as penances (kaffārāt);
8. rights that exist independently such as the public right to a portion of the wealth amassed from minerals.

Acts in which the sole right-holder is a human being are those that protect the private mundane rights of individuals. At times of dispute, litigation is needed to prove and/or settle this right. The person to whom this right is proven to be due may ask for the right in full, reach a resolution with the counterparty in its regard, or forgo the right and pardon the convicted offender. In other words, the person has full discretion to enforce or not to enforce this right. For example, a person whose property was damaged by another deserves suitable compensation for such damage, but may agree with the counterparty to take half that amount or to exonerate the perpetrator altogether.¹¹¹

Acts in which the right of the Divine coexists with the right of man with the former being predominant are those that favor public interest over individual rights. According to anafi jurists, the punishment for false accusation of promiscuity (qadhf) is an example of this. Shāfi‘i scholars contend, however, that the victim may forgo this human right because human rights prevail in this scenario.¹¹²

Acts in which the right of the Divine coexists with the right of man with the latter being predominant are those that favor individual rights over the public interest. Committing willful, premeditated murder is an example.¹¹³

This brings us to the end of the four essential elements that are required for a sharī‘ah ruling to exist. This abridged explanation is by no means sufficient to plumb the depths of the topic, but, it is sufficient for our purposes. In the next section we take a more holistic approach in highlighting some key characteristics of sharī‘ah.

1.6 Characteristics of Sharī‘ah

According to the contemporary Islamic jurist Al-Qaradawi, sharī‘ah has six key characteristics.¹¹⁴ The first is its divinity.¹¹⁵ Such divinity explains why sharī‘ah is highly venerated and its laws are sought after by Muslims. Whether in the realm of finance, ethics, or any other domain, Muslims are interested in knowing what sharī‘ah has to say in order to align their actions with it.¹¹⁶ The companions of prophet Muhammad (pbuh) displayed great reverence toward the Divine by submitting to His commands.¹¹⁷ When the final verse prohibiting alcohol was revealed,¹¹⁸ the companions gave up their habit of drinking and disposed of their alcohol reserves.¹¹⁹ They did so despite alcohol being so widespread among Arabs at the time that they had more than 100 names for it.¹²⁰ It must have been a challenge for the companions to give up drinking; nevertheless, the Divine element of this injunction made it all the easier for them to reform their social practices.

The second characteristic of sharī‘ah is its anthropocentric nature.¹²¹ Sharī‘ah focuses on different aspects of life that lead to happiness and well-being, while recognizing natural human dispositions and the feelings of humankind. It acknowledges that the soul gravitates to spiritual non-materialistic things such as faith while the body gravitates to mundane materialistic desires such as possessions. Sharī‘ah balances these dimensions. With respect to the materialistic aspect or the worldly affairs of people, such as earning an income, contributing to civilization, and consummating marriage, sharī‘ah addresses this dimension in great detail. The majority of fiqh concerns worldly matters. Likewise, sharī‘ah addresses the spiritual dimension with great depth. This anthropocentric approach is embodied in sharī‘ah’s recognition of the needs of different parts of the human: the body, “Your body has a right over you”;¹²² the mind, “So let man observe from what he was created” (86:5); and the soul, “It is He who has sent among the unlettered a Messenger from themselves reciting to them His verses and purifying them [their souls]” (62:2). The Divine sources outline clear regulations that balance the different needs in a harmonious manner. The Qur’ān also emphasizes both the dignity of humans and their weaknesses.¹²³

From this anthropocentric perspective and the monotheistic belief in the Divine stems the notion of equality. Sharī‘ah refuses to give preference to any individual on the basis of gender, race, ethnicity or any other quality and respects the sanctity of each being. It thus considers the killing of a single soul tantamount to killing all of humanity and the saving of a single soul tantamount to saving all of humanity: “whoever kills a soul unless for a soul or for corruption [done] in the land – it is as if he had slain mankind entirely. And whoever saves one – it is as if he had saved mankind entirely” (5:32). In doing so sharī‘ah eliminates different forms of discrimination and sets everyone on an equal footing before the law. Furthermore, it sets righteousness as the only criterion for ranking individuals and considers diversity a springboard for encouraging amicable relations: “O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allāh is the most righteous of you. Indeed, Allāh is All-Knowing and Well-Acquainted [with all things]” (49:13). The teachings of the prophet Muhammad (pbuh) add extra emphasis to this notion of equality. He warned his companions that previous nations were destroyed because weak defendants – those lacking social status – were convicted, while strong defendants were vindicated because of their social standing. He therefore refused any attempts of intercession on behalf of perpetrators based on their status. Instead, he asserted that even his daughter, Fāimah (d. 11 AH/632 CE), was to be prosecuted for any misconduct that she might commit.¹²⁴

The third characteristic of sharī‘ah is its comprehensiveness: “And We have not sent you [O Muhammad] except comprehensively to mankind as a bringer of good tidings and a warner. But most people do not know” (34:28). Sharī‘ah hence does not leave mankind without guidance on different aspects of life.¹²⁵ Being comprehensive entails that the sharī‘ah pertain to all eras that succeed its revelation and that it be applicable to people of all ages, races, ethnicities, social classes, etc. Without this inherent holistic characteristic, sharī‘ah would be out of touch with people’s realities over time. We mentioned earlier that sharī‘ah addresses the needs of the body, mind, and soul. It also addresses different facets of human life: creed, morals, worship rituals, transactions, family and social relations, politics, and judicature.¹²⁶ In the sixty-second chapter of the Qur’ān, the verses¹²⁷ commingle acts of faith and trade to illustrate the comprehensiveness of sharī‘ah and reject any notion of it being limited to mere rituals. For example, the verses command Muslims to join the Friday congregational prayer when its time comes and to engage in trade and other activities after the prayer in pursuit of a lawful income.¹²⁸

The fourth characteristic of sharī‘ah is its morality. While positive law is concerned with preventing harm, sharī‘ah goes beyond that purpose to encouraging good, establishing justice, and outlining what ought to be. Sharī‘ah advocates moral values that are intended to further facilitate social order beyond what can be achieved by law independent of morals and to build a society that achieves the well-being of humanity without being disconnected from reality. The morals that are promoted are in reality attributes of the Divine and this underlines their significance: man draws closer to God by following the moral guidelines attributed to the Divine. Morals, which are initially regulated by each individual’s conscience, are a primary reason for people to abide by regulations even in the absence of authority. Without such morals, members of society could easily be sucked into a whirlpool of unethical practices that might not be caught by the regulatory authorities and could have devastating effects on society. Morals that transcend the traditions of any specific society were divinely revealed to establish common moral norms. The Parliament of the World’s Religions has recognized the moral turmoil that the world has witnessed and attempted to correct this situation by proclaiming the Declaration of the Religions for a Global Ethic.¹²⁹

The foremost objective of Muhammad’s prophethood was not merely to provide guidance on truth and justice but to reform the moral code of society as evidenced by his saying, “I was sent to perfect honorable morals.”¹³⁰ Thus, issues of morality are inextricably entwined within the different domains of life and sharī‘ah. The prophet (pbuh) embodied these morals and was praised by God for doing so: “And indeed you are of a great moral character” (68:4). He also communicated to his followers the admirable status of one who upholds morals by saying, “The best among you are those with the best manners.”¹³¹ Sharī‘ah placed morals ahead of other worldly gains. For example, the verse prohibiting the drinking of alcohol and gambling attests to some minor benefits of these activities, such as the economic gains; nevertheless, it points out that the societal harm of these activities, many of which are morals-related, is greater: “They ask you about wine and gambling. Say, ‘In them is great sin and [yet, some] benefit for people. But their sin is greater than their benefit’” (2:219). To protect the moral fabric of society, sharī‘ah considers certain grave moral offences crimes worthy of punishment.¹³² All of this justifies the strong association that exists between morals and different aspects of human life such as creed, worship rituals, financial transactions, family and social relations, politics, and judicature.

Let us examine the relationship between morals and creed. A direct relationship exists between speaking well of others, being kind to neighbors, and being hospitable to guests – all forms of exhibiting decorum – and creed.¹³³ This relationship is so strong that a person cannot achieve the acme of belief without exhibiting good moral character. Ibn ‘Abbās is reported to have said: “I heard the prophet, may Allah bless him and grant him peace, say, ‘A man is not a believer who fills his stomach while his neighbor is hungry.’”¹³⁴ This adīth teaches that belief is of various levels and that a person with such a self-centered trait has not attained the pinnacle of belief.¹³⁵

A second example of the relationship between morals and facets of human life is the connection that exists between morals and ritual worship. Rituals are meant to elevate one’s moral character. For example, prayer should fortify one’s conscience by protecting the individual from engaging in immorality and wrongdoing. In addition, it is meant to be a refuge in the face of the difficulties of life. The Qur’ān says, “Indeed prayer prohibits immorality and wrongdoing” (29:45) and “O you who have believed, seek help through patience and prayer” (2:153). Almsgiving, which is given to needy members of society, is meant as a means of purifying the property of the giving person and building stronger social ties among different segments of society: “Take, [O, Muhammad], from their wealth a charity by which you purify them and cause them increase” (9:103). Fasting is a means for increasing one’s piety and temperance: “O you who have believed, decreed upon you is fasting as it was decreed upon those before you that you may become righteous” (2:183). The ajj is a journey of a lifetime that is meant to teach a range of qualities, including temperance, obedience to God and humbleness: “So [for] whoever has made hajj obligatory upon himself therein [by entering the state of ihrām], there is [to be for him] no sexual relations and no disobedience and no disputing during hajj” (2:197). Hence, worship rituals aim to develop and nurture morals. Failing to accomplish this goal indicates that these rituals were performed on a perfunctory basis devoid of their intended purpose: “If anyone does not abandon false speech and actions, Allah is not in need of him abandoning his food and drink.”¹³⁶ Moreover, a person who harms others by their actions may be punished regardless of the number of devotional acts the individual performs: “Abu Hurayrah, may Allah be pleased with him, reported that a man asked, ‘O Messenger of Allah! There is a woman who prays, gives charity, and fasts a great deal, but she harms her neighbors with her speech (by insulting them)’. He said: ‘She will go to hell.’ The man said: ‘O Messenger of Allah! There is (another) woman who is well-known for how little she fasts and prays, but she gives charity from the dried yoghurt she makes and she does not harm her neighbors’. He said: ‘She will go to paradise.’”¹³⁷

The fifth characteristic of sharī‘ah is its realism. While sharī‘ah tries to build a moral society, it provides persons the freedom to choose between doing good and bad acts and recognizes that humans will err at some point. The Creator thus revealed a legal framework to justly establish and maintain order in society in a pragmatic manner. For example, while sharī‘ah calls for temperance and high morals, it recognizes that there will be those who will commit crimes. Penal law was revealed to deal with these individuals. While sharī‘ah tries to bring peace to societies, it acknowledges that there will be those who will transgress the rights of other nations. Hence, the ethics of war were revealed for cases where war is the last resort. While sharī‘ah calls for establishing strong families, it acknowledges that some spouses may face never-ending marital problems. Thus, it has permitted divorce as a final resolution if reconciliatory efforts are unsuccessful.

Concessionary rulings tailored for individuals facing hardship in certain situations are a variant of this realism found in sharī‘ah. For example, illness, travel, coercion, forgetfulness, and fallibility are all reasons for concessionary rulings that allow people to be relieved from undue hardship.¹³⁸ Moreover, the teachings of Islam were embodied by a human prophet to underline their feasibility.¹³⁹

The implementation of sharī‘ah needs to be gradual as an essential part of its realism. During the first thirteen years of revelation prophet Muhammad (pbuh) taught his companions in Makkah about creed and morals, thereby ensuring that they possessed a firm grounding in the most vital components of the religion. In the second phase of revelation that took place in Medina, where Muslims established their first civil government, most of the guidance related to legislation that would establish order in the new society. Such legislation addressed the individual, the community, and the nation and was revealed either to answer a specific question that the prophet (pbuh) was asked about or to resolve an incident that occurred or was initiated by the Lawgiver because the right time for it had come. Numerous topics were tackled in a gradual manner that facilitated the implementation of the law. Equipped with strong conviction that resulted from the first phase of preparation, the companions accepted and incorporated this legislation in their daily lives and in the affairs of the polity.

The sixth characteristic of sharī‘ah is its moderation, which places it in a middle ground between polarized extremes. A sense of equilibrium is created and maintained between divergent ideas such as spirituality and materialism, revelation and cognition, individuality and collectivism, idealism and pragmatism, rights and responsibilities, orthodoxy and innovation, and this life and the next. With the same precision that was used to create the symmetrical universe that we live in, the Legislator prescribed harmonious moderation on sharī‘ah: “And thus we have made you a balanced community that you will be witnesses over the people and the Messenger will be a witness over you” (2:143). This coherent balance indicates a sense of justice, as it is not befitting to bear witness against others if one is unjust.¹⁴⁰ In line with the notion of centrism or moderation, sharī‘ah calls for a balanced viewpoint that takes into consideration conflicting thoughts and opinions. It prescribes lawful things and proscribes harmful things while keeping the unlawful to a minimum. It calls for monotheism, which is neither atheism nor polytheism. It considers the earthly life without forgetting about the hereafter. It believes in the unseen world while not alienating the most valuable characteristic of a human cognition: “Say, ‘Produce your proof, if you should be truthful’” (2:111). It confers upon the individual rights and duties, just as it confers upon the community rights and duties. Thus, absolute individual rights free from any constraints do not exist because somewhere people will exceed their limits. Boundaries are in place to preserve the coherence of this harmonious system. In short, this moderation is illustrated in creed, morals, worship rituals, and transactions.¹⁴¹

Since sharī‘ah is revealed to be valid irrespective of time, place, and circumstances, this entails that it be flexible to accommodate varying needs. Sharī‘ah addresses this by striking a fine balance between the constancy of the law and its adaptability. This balance is the epitome of this concept of moderation. Here is how this balance is reached. First, since the overreaching objective is to secure the well-being of creation by promoting what will benefit it and protect it from harm, a ruling could be derived for any situation by weighing benefits against harms within a pliable framework. In the coming section we will further explore the objectives (maqāid) of sharī‘ah, which are used by Islamic jurists to derive rulings. Second, rulings are subdivided into detailed rulings for application and general principles for guidance. The detailed rulings relate to creed, worship rituals, morals, and aspects of relationships. In this arena rulings do not change regardless of changes in surroundings. This constant area of the law has preserved the characteristics of sharī‘ah and its fundamental beliefs over the centuries. For example, the fundamentals of the Islamic creed such as the oneness of God, belief in the angels, the books, the prophets, the last day, and fate never change. Similarly, worship rituals such as cleanliness, prayer, fasting, zakāh, and ajj have been explained in detail to be observed only in the manner prescribed. Likewise, manners such as honesty and humility do not change in meaning. Finally, some of the detailed rulings such as the procedure for marriage or divorce and the laws of inheritance are set on a firm basis for all people, taking into account their well-being.

The second arena of rulings consists of general principles, which are used as guidance for any situation. An example of this is the maxim that one must not harm others nor counter one harm with another (lā arar wa-lā irār). Such a principle may be applied to different situations. Third, the primary sources of sharī‘ah contain an element of flexibility, which is also evident in fiqh. Ibn Al-Qayyim devoted a chapter of his renowned book I‘lām Al-Muwaqqi‘īn to the variation of fatwa¹⁴² based on changes in time, places, circumstances, intentions, and customs. These three aspects of sharī‘ah allow it to accommodate the different needs of people over time and to strike a moderate balance between flexibility and firmness.¹⁴³ In the following section we examine the objectives that sharī‘ah attempts to achieve.

1.7 Objectives of Sharī‘ah

Elaborating on the terminology relating to the objectives or purposes (maqāid) of sharī‘ah is a key first step before proceeding to address the topic. The Arabic word al-qad etymologically means to be just and the center point between two ends.¹⁴⁴ For example, the Qur’ānic verse instructs, “and be moderate [waqid] in your walking pace” (31:19). In other words, do not walk at a very slow or very fast pace, but at a moderate one that lies between these two extremes. Al-qad can also mean to intend something, and to pursue it.¹⁴⁵ For example, when scholars say that maqāid are taken into consideration when judging acts of conduct, they mean the inner unrevealed objectives of the mukallaf that person tried to achieve through performing the act.¹⁴⁶ Furthermore, al-qad can also mean the straight path that does not deviate:¹⁴⁷ “And upon Allah is guidance to the straight path [qad al-sabīl], and among the various paths are those deviating” (16:9). Finally, the word can mean nearness:¹⁴⁸ “Had it been an easy gain and a near trip [safaran qāidan]” (9:42).

The terminological meaning of al-qad does not differ much from the etymological meaning to intend something, and to pursue it. Thus, maqāid al-sharī‘ah – henceforward referred to as maqāid – means the objectives that are fulfilled through God’s rulings and that are meant by Him to safeguard people’s well-being.¹⁴⁹ The topic is one of rekindled interest and deservingly so given the complexity and dynamism of life in our times. Moreover, it helps shed light on the rationale underlying divine commandments. Islamic jurists have to exert enormous effort in fathoming this fine discipline in order to “develop legal principles and methodologies that, when applied in law-finding, faithfully reflect God’s will as manifested in the revealed law and that do not lead the believers to stray from God’s path.”¹⁵⁰ Hence, their rulings must account for the vicissitudes of life. Moreover, jurists must have a strong command of this topic because their work ultimately leads to jurisprudential and judicial change, since they “legitimize the ‘correct’ interpretation of the revealed law and the ‘valid’ methods and procedures of law-finding [or judicial determination].”¹⁵¹ Attesting to this, Al-Shātibi asserts that those who fathom maqāid and who can deduce rulings based on their understanding of maqāid have risen in rank to the level of performing ijtihād.¹⁵²

The Andalusian jurist Al-Shātibi¹⁵³ is perhaps the first name that comes to mind when the topic of maqāid is discussed. Several jurists preceded Al-Shāibi, however, in writing on the discipline such as Al-Juwayni (d. 478 AH/1085 CE), Al-Ghazāli (d. 505 AH/1111 CE), Al-‘Izz Bin ‘Abd Al-Salām (d. 660 AH/1262 CE), Al-Qarāfi (d. 684 AH/1285 CE) and others. While the works of these jurists led to the emergence of this branch of knowledge as a standalone discipline, earlier jurists of the first three centuries discussed maqāid under different juristic methods such as analogy, juristic preference, and interests.¹⁵⁴ Nevertheless, Al-Shātibi, who was influenced by the scholars who preceded him, can be credited with dedicating significant research to the discipline. He elaborated on maqāid’s fundamentals, organized this branch of knowledge and added to it, explained what had been summarized, simplified what had become complicated, and resolved what had appeared problematic.¹⁵⁵ Furthermore, Al-Shātibi’s maqāidi perspective runs throughout his book Al-Muwafaqāt as a common theme when he speaks about the fundamentals of law. He entitles the second chapter of Al-Muwafaqāt the “Book of Maqāid.” In this chapter he tries to ascertain the aim of sharī‘ah as related to the intent of the Divine Legislator (Shar‘) and of the mukallaf.

To establish law at times when no such law can be found in the primary texts or to adapt law for contemporary times, jurists take into account the interests of creation. From the Legislator’s perspective the interests of creation may fall into one of three categories. First, interests acknowledged by the Divine with commands legislated to achieve them (maalih mu‘tabarah). The Divine prescribed commandments to uphold these interests. This is definite proof of their existence and of His approval.¹⁵⁶ For example, to protect people’s property the Divine prohibited stealing. Furthermore, He added extra warnings for those who arrogate to themselves the property of vulnerable subjects of society such as orphans: “Indeed, those who devour the property of orphans unjustly are only consuming into their bellies fire. And they will be burned in a blaze” (4:10). Second, interests refuted by the Divine (maālih mulghāh) by clear injunctions in the sources or consensus.¹⁵⁷ In this scenario, recognizing these interests would lead to sacrificing even more valuable interests; therefore, they are refuted. For example, interest is prohibited in transactions because it leads to injustice in society. Third, unattested interests that the Legislator neither acknowledged nor refuted with divine revelation but remained silent in their regard; these are termed unrestricted interests (maāli mursalah).¹⁵⁸ These interests fall within the general guidelines of sharī‘ah and prevent harm or realize benefits.¹⁵⁹ The objectives of sharī‘ah are thus explicitly mentioned, alluded to, or inferred.¹⁶⁰ Moreover, the Divine intended them for the sake of benefitting creation, irrespective of the means that jurists have used to discover them.¹⁶¹

Jurists have classified maqāid in different ways based on numerous dimensions.¹⁶² One such method is by distinguishing the general (kulli) objectives from the partial (juz’i) and the specific (khā) maqāid. General or macro maqāid are objectives that can be observed in all aspects of the law. On the other hand, partial or micro maqāid are those that relate to a specific ruling. In between these two lie specific maqāid. These pertain to a specific chapter or realm of law such as financial transactions.¹⁶³ Islamic jurists have differed on the number of maqāid falling in each of these categories. Nevertheless, macro maqāid include necessities (arūrīyāt), needs (ājīyāt), embellishments (tasīnīyāt), and new universal maqāid.¹⁶⁴ Some authors recognize new universal maqāid, but do not see a need to have a separate category for them since they argue that necessities, needs, and embellishments are open-ended and that new maqāid may fit under any of these.¹⁶⁵ Given the debate on whether these categories are open-ended or not, especially necessities, we present new maqāid as a separate category.

According to Al-Shātibi, the purpose of revealing sharī‘ah is the success of creation in this life and the next.¹⁶⁶ The injunctions of sharī‘ah are means for persevering and applying its maqāid, which Al-Shātibi maintains are the necessities, needs, and embellishments of people.¹⁶⁷ Necessities are indispensable for establishing the prosperity of people in this world and the hereafter. These necessities are the preservation of one’s religion, life, intellect, property, and offspring. Without these necessities the mundane well-being of people is disrupted and corrupted, and the lives of people would be destroyed. Lack of them would also lead to forfeiture of God’s salvation, bounties, and ultimate loss in the hereafter.

Al-Shātibi mentions two ways to preserve necessities: erecting their pillars and stabilizing their foundations by ensuring their existence, and preventing any imbalance that has occurred or is expected to happen. The latter is done by considering them from the perspective of non-existence.¹⁶⁸

Necessities are the highest level of objectives. For example, the five pillars of Islam and other religious rituals have been prescribed to establish and preserve religion in people’s lives. Principal customary matters (‘ādāt) are protected through the preservation of life and intellect via food, drink, clothing, shelter, etc. Primary matters relating to transactions (mu‘āmalāt) are safeguarded through the direct protection of offspring and property by ensuring their existence, and the indirect protection of life, as well as the protection of intellect via customs. The second aforementioned method preserves the five necessities by mandated enforcement of actions that punish those who transgress them and act as a reminder and deterrent.¹⁶⁹

Let us turn to a few examples. The Divine has permitted a person who is about to die from thirst to drink a forbidden substance in the minimum amount needed to remain alive so as to preserve the person’s life. Similarly, He commanded people to seek knowledge, and prohibited alcohol, drugs, and anything that might lead to the absence of one’s mind in order to safeguard people’s intellect and thinking abilities. He also prescribed trade and other professions so people can earn lawful incomes, and prohibited irresponsible spending of money in order to protect people’s property. Finally, He instituted marriage for spouses to have offspring and allow the human race to continue, and prohibited adultery to protect chastity and erect socially stable societies with strong family ties.

The next level down in the hierarchy of objectives is needs (ājīyāt), without which the mukallaf would face hardship. Here the level of corruption would not reach the same level faced in the absence of necessities. Therefore, in terms of urgency they come at a level below that of necessities. Also, they can relate to worship rituals, principal customary matters, transactions, and enforcement actions. For example, in worship rituals, the Divine permitted the sick and travelers to break their fast in order to free them from hardship. In customary matters, while eating a certain amount of food is necessary to protect against the loss of one’s life, the extent to which the meal is deemed nutritionally balanced and whether or not the food is cooked or not are considered needs not necessities.¹⁷⁰ In general, the enjoyment of what is lawful from food, drink, clothing, shelter, and transportation is categorized as needs within the domain of customary matters. A car is considered a need for a person who must commute to earn a living in a society with a poor public transportation system, but it may rise to become a necessity in some situations where there is a lack of other transportation methods. In transactional matters, different types of transactions such as the silent partnership (qirā or muārabah), share cropping (musāqāh), and forward contracts¹⁷¹ (salam) fall under needs without which people would have a difficult life. In enforcement actions, protecting the rights of people requires that customers be compensated for damaged or destroyed items because otherwise people would face difficulty in dealing with craftsmen.¹⁷²

The third level down in the hierarchy of objectives is the embellishments (tasīnīyāt). These are matters that, as Al-Shātibi describes them, are considered good customs adopted by sensible people.¹⁷³ Once again, they apply to worship rituals, principal customary matters, transactions, and enforcement. Removing impurities, beautification, and performing discretionary acts of obedience such as giving to charity are examples relating to worship rituals. The manners of eating and drinking and avoiding impure foods and drinks are examples pertaining to ‘ādāt. The prohibition of the sale of impurities is an example within mu‘āmalāt.

Embellishments come at a level below necessities and needs, because at this level the system of life is not disrupted nor do people fall into hardship as a result of their absence. Furthermore, such embellishments are meant to perfect what is in existence. Taking the earlier example of food, the way cuisine is presented on a plate would fall under the category of embellishments. Al-Shātibi adds a complementary rank to those of necessities, needs, and embellishments.¹⁷⁴

New universal maqāid are objectives that contemporary Islamic jurists of different eras observe as recurring themes throughout sharī‘ah.¹⁷⁵ Ibn Taymīyah is likely the first jurist to explicitly mention these objectives when he revised the scope of maqāid from a limited number to an unlimited number of values.¹⁷⁶ In his view examples of these objectives include moral purity, trustworthiness, love of God, and sincerity.¹⁷⁷ To identify these, jurists analyze the sacred scripts and try to link common themes together. Ibn Bayyah observes the following universal maqāid: tribulation, worship, vicegerency, development, and equity.¹⁷⁸ Scholars have mentioned numerous other examples of universal maqāid including independence, freedom, maintaining the rights and dignity of humans, purifying one’s soul, and the oneness of God.¹⁷⁹

‘Attiyah expanded the maqāid from 5 to 24 grouped under the following categories: individual, family, community, and humanity.¹⁸⁰ In general, universal maqāid not only represent the outcome of each jurist’s analysis, but also portray the jurist’s perspective on reforming and developing Islamic law.¹⁸¹ Each jurist’s interpretation “is influenced, and may even be bound, by his time and his social, political, and economic environment, including its rules and conventions for interpreting language, law, and theology.”¹⁸² This high-level understanding of maqāid of sharī‘ah sets the stage for us to explore the Islamic economic system.

1.8 The Islamic Economic System and its Characteristics

The Islamic economic system aims to facilitate an honorable living for people. Chapra elaborates: “[It] helps realize human well-being through an allocation and distribution of scarce resources that is in conformity with the maqāid, without unduly curbing individual freedom, creating continued macroeconomic and ecological imbalances, or weakening family and social solidarity and the moral fiber of society.”¹⁸³ Grounded in the sources of sharī‘ah, the system grants people the freedom to enter into transactions, recognizes the right to private ownership, which is the basis for being entitled to earning returns, and directs people towards beneficial activities that affect the real economy. These principles are meant as means for protecting the rights of parties, ensuring that transactions are fairly executed, and encouraging the production and exchange of real goods and services that truly add value to the economy.¹⁸⁴ Within the boundaries of this sharī‘ah-rooted system there is plenty of injunction-free space that permits people to develop new innovative products and services that help realize individual and collective well-being.¹⁸⁵

The system strikes a balance between considering individual and communal benefits that relate to private and public ownership. At times when individual benefit is at odds with the general well-being of people, the first is forgone for the greater good. The concept of vicegerency (khilāfah) is quite important to mention here. This concept is based on the notion that the Divine is the owner of everything in existence, but He created mankind with free will to be His vicegerents. From this perspective, property and wealth are seen as a trust that humankind are required to deal with within the bounds set by their real owner, the Divine.¹⁸⁶ This entails honoring laws and guidelines set by the Divine. Sharī‘ah guidance designed to help the Islamic economic system achieve its purpose includes advocating moderation in spending, prohibiting harmful substances or activities, paying zakāh and helping the needy, encouraging people not to let capital be idle, warning against harming others with one’s possessions, and protecting the environment.¹⁸⁷ Sharī‘ah identifies lawful means by which property may be attained, especially through removing barriers to broadening individual access to ownership of productive capital and free ownership of one’s own labor, but also through “intrinsic growth of already owned property, inheritance, gift and voluntary giving, and by exchange.”¹⁸⁸ Means that fall outside these avenues are prohibited because they contain an element of injustice. Sharī‘ah labels certain resources as public property based on the fact that they benefit the masses and their existence is not dependent on individual efforts, for example, water, energy, and oil.¹⁸⁹

Sharī‘ah recognizes that economic development cannot happen without human effort: “He has brought you into being out of the earth and settled you in it [ista‘marakum fīhā]” (11:61). The word ista‘marakum may be translated to mean “settled you.” While this is considered an authentic meaning as per the interpretation of scholars such as Mujāhid (d. 104 AH/722 CE), Qatādah (d. 118 AH/736 CE), and ibn ‘Abbas, Al-Qurtubi (d. 671 AH/1272 CE) provides an alternative interpretation that He created you to develop it.¹⁹⁰ Zayd ibn Aslam asserts that ista‘marakum means that He ordered you to develop it by building houses, planting trees, and the like.¹⁹¹ Ibn Kathīr endorses a combination of both meanings of the term: He settled humankind therein to populate it and utilize its resources.¹⁹² Al-Afahāny (d. 688 AH/1289 CE) mentions three purposes for which people were created: to develop the earth, worship God, and be His vicegerents.¹⁹³ The three are interlinked since the first purpose, if done with a sincere intention within the boundaries of sharī‘ah in line with the concept of vicegerency, is considered worship.¹⁹⁴ While working toward development, humankind needs to engage in different processes such as extracting and purifying water, cultivating plants, breeding animals, mining minerals, manufacturing products, recycling waste, etc.

Without ample resources mankind would not be able to accomplish any of these duties. The Divine has thus provided necessary resources needed to equip mankind for their task: “And He has subjected to you whatever is in the heavens and whatever is on the earth – all from Him” (45:13); “It is Allāh who created the heavens and the earth and sent down rain from the sky and produced thereby some fruits as provision for you and subjected for you the ships to sail through the sea by His command and subjected for you the rivers. And He subjected for you the sun and the moon, continuous [in orbit], and subjected for you the night and the day. And He gave you from all you asked of Him. And if you should count the favor of Allāh, you could not enumerate them” (14:32–34). These verses illustrate that whatever has been created in the heavens or in the earth may be used by mankind for developmental purposes, so long as equilibrium is maintained in the ecosystem.

The role of political governance in this system is to ensure that legislation in conformity with sharī‘ah guidelines is in place to encourage cyclical balance in the production and consumption of goods and services and to guarantee a safe and stable environment for investment. These are key features for attracting investors and their capital and reassuring stakeholders that their rights are protected. Laws, policies, and regulations should for instance ensure the safety and quality of goods and services, protect the rights of consumers and employees, enhance fair competition, and equitably allocate resources to different segments of society.¹⁹⁵

At the heart of this system lies a robust judiciary system that can fairly and efficiently resolve disputes. The government also needs to encourage investment even if this means guaranteeing capital as an independent third party to transactions. Furthermore, it is also responsible for infrastructure projects such as roads and should not overburden citizens with taxes. To prioritize project expenditure, the government should classify projects in terms of their importance. Perhaps a scale that would utilize the necessities, needs, and embellishments classification discussed earlier would be suitable for this task. The state should also seek to diversify its sources of income by seeking a balance among different industries, such as manufacturing, agriculture, and trade. This would not merely mitigate the risk of a severe decline in income if a particular industry undergoes turbulence, but would also strengthen just governance as it would be able to fulfill the demands of citizens though its diverse activities. In line with this balanced approach, the government should observe moderation in spending since its wealth is a resource for current and future generations.¹⁹⁶

Even though modern day writings on Islamic economics as a discipline have increased in number in the past three decades, the field is still considered in its infancy. An epitome of this is the definition of Islamic economics on which there is no consensus. Hasanuzzaman defines it as “the knowledge and application of injunctions and rules of the Sharī‘ah that prevent injustice in the acquisition and disposal of material resources in order to provide satisfaction to human beings and enable them to perform their obligations to Allah and to society.”¹⁹⁷ Mannan defines it as “a social science which studies the economic problems of a people imbued with the values of Islam.”¹⁹⁸ Ahmad defines it as “a systematic effort to try to understand the economic problem and man’s behavior in relation to that problem from an Islamic perspective.”¹⁹⁹ Siddiqui defines it as “the Muslim thinkers’ response to the economic challenges of their times. In this endeavour they were aided by the Qur’an and the Sunnah as well as by reason and experience.”²⁰⁰ Khan defines it as “the study of human falah [success] achieved by organizing the resources of the earth on the basis of cooperation and participation.”²⁰¹ Naqvi defines it as “the representative Muslim’s behaviour in a typical Muslim society.”²⁰² Cantori defines it as “an effort to formulate a more human-oriented and society-oriented economics that wants to deny the excessiveness of individualism within classical economics.”²⁰³ Zaman defines it as “the knowledge and application of injunctions and rules of Sharī‘ah that prevent injustice in the acquisition and disposal of material resources in order to provide to [sic] human beings and enable them to perform their obligations to Allah and the Society.”²⁰⁴ Kahf defines it as “a branch of economics that studies the units and variables within the Islamic legal and ideological framework, actual or assumed.”²⁰⁵ The International Shari’ah Research Academy for Islamic Finance (ISRA) defines it as “a newly emerging discipline that takes the lead in resolving newly arising economic issues from the viewpoint of maqasid.”²⁰⁶ Ahmed defines it as “the science that studies the best possible use of all available economic resources, endowed by Allah, for the production of maximum possible output of Halal [lawful] goods and services that are needed for the community now and in future and the just distribution of this output with the framework of Sharī‘ah and its intents.”²⁰⁷ Ahmed further adds, “the science which searches in the best possible use of human productive capacities and all resources, natural and man-made, in the manner that would yield maximum possible Halal Earnings at present and in future, distributing and spending these earnings within the framework of Sharī‘ah.”²⁰⁸

These definitions illustrate that there are differences among authors on several fronts, such as the scope of Islamic economics and whether it should be classified under the general heading of economics or if it is a unique discipline by itself. We do not intend to dig deeper into the varying perspectives and the pros and cons of each, but wish to observe some general points of agreement. First, the Islamic economic system is bound by sharī‘ah. Second, the goal of the system is the well-being of humankind.²⁰⁹ Third, human well-being is achieved by considering both the material and non-material aspects of people.²¹⁰ Being bound by sharī‘ah should not be misunderstood to mean that sharī‘ah sets Islamic economic theories, nor should it be misconstrued to mean that sharī‘ah does not affect the outlook of the economist and that it is limited to the prohibition of riba and institution of zakāh. Ahmed illustrates these two extremes quite well:

At one extreme, some contemporary Islamic scholars and jurists believe that shariah principles and values related to economic transactions constitute the sum of the Islamic Economic science. This approach cannot be accepted. It is just like saying that secular economic science is a collection of laws, customs, and the moral practices that govern economic activities. In fact, the economic problem is distinct and cannot be analyzed or solved by fiqh rules. It is the economists’ role to discover means and tools that are suitable to analyze this problem and to find out its cause(s), consequences and solutions in practical life. At the other extreme, Islamic economists who have been profoundly influenced by secular economics believe that Islamic Sharia and values constitute a general framework which is directly relevant to Islamic economics only in few specific matters, such as Zakat collection and Riba prohibition. Otherwise this framework is completely neutral to economic analysis. As a result there is no need, in their opinion, to widen the gap between secular and Islamic economics (except for the known issues of zakat and riba). This opinion cannot also be accepted[,] as Islamic Shariah and values involve many other economic issues and not only zakat and riba.²¹¹

Islamic economists should consider beneficial conventional economic postulates and analyses that do not intrude on sharī‘ah and its derived axioms when forming their perspectives on economic issues.²¹² Although sharī‘ah includes broad guidelines that relate to different disciplines, it encourages innovation in avenues of life that are not related to worship rituals. Hence, every discovery made by humankind is one that needs to be seriously assessed within the broad guidelines of sharī‘ah.

The general characteristics of sharī‘ah that we discussed earlier permeate different aspects of the law. We will now explore the relationship between these salient characteristics and Islamic economics, and how the system serves the goals of sharī‘ah. Since Islamic banking is viewed as a subset of Islamic economics, these characteristics apply to the former as much as they apply to the latter with slight modifications.

The cardinal characteristic guiding Islamic economic activity is being bound by sharī‘ah. A key injunction of sharī‘ah in this regard is the prohibition of usury (riba): “Allāh has permitted trade and has forbidden interest” (2: 275). Other guidelines include engaging in fair transactions where no exploitation of parties takes place and the consequences of contracts are clear, recognizing the relationship between ownership and profit entitlement, acknowledging a one-to-one correspondence between financing and real market transactions, and prohibiting unethical items or industries such as tobacco, alcohol, arms, and pornography. Additionally, redistributing income among members of society through zakāh is a notable feature of this system, while recognizing that charity and the redistribution of wealth are not adequate substitutes for justice in the functioning of an economic system.

As can be seen below, Nakajima and Rider argue that Judaism and Christianity prohibited interest-incurring transactions until recently:

In the ancient world the taking of interest was considered usury and generally, albeit not universally, condemned as “eating” away the resources that should be utilized in repayment. While the Code of Hammurabi and even earlier Babylonian laws appear to sanction the taking of interest, commercial loans were not the practice in the ancient world. Lending was seen to be an act of charity and obviously would not sit well with taking of additional and unearned payment by way of interest. There are coffin texts in ancient Egypt that appear to condemn usury in this sense. The Old Testament has many such references. Those of us who follow, in one way or another, the legal traditions of Rome, would recognize laws of both the Republic and the Empire condemning the taking of excessive interest, although it would seem that loans were rarely advanced without the prospect of some reward, financial or political. Christianity has also been forceful in its condemnation of usury, or in the early Church, interest at all, save, as we have already mentioned, in the case of risky maritime ventures. Jesus, while endorsing the earning of income from investment (Matthew xxv.27 and Luke xix.23) condemned the taking of interest: “Give without hoping to make gain” (Luke vi.31) …given its [sharī‘ah] founding on indisputable principles of a profound and theocratic nature, it has not willingly tolerated a dispute as to the difference between the mere taking of interest per se and the charging of excessive or abusive interest, with the condemnation of usury being focused on the latter. Thus, today in most secular legal systems, largely as a result of commercial and pragmatic factors, the taking of interest is accepted, but the demand for excessive interest is outlawed as usury.²¹³

Riba etymologically means increment.²¹⁴ Terminologically, the term refers to two categories of usurious transactions. First, riba al-nasī’ah, an increment charged for postponing a debt.²¹⁵ Second, riba al-buyū‘, an increment in the amount or delivery time in exchanges pertaining to counter-values of the same kind or specific different counter-values mentioned in the following adīth:²¹⁶ “Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, and salt for salt – like for like, equal for equal, and hand-to-hand; if the commodities differ, then you may sell as you wish, provided that the exchange is hand-to-hand.”²¹⁷

An important Islamic financial maxim on riba that is derived from prophetic teachings posits that the enjoyment of a gain or profit is a compensating factor for the property being under the person’s liability (al-kharāj bi al-amān). In practical terms, a person who owns a $50 bill is entitled to any gains that may arise from investing it, since he is also liable for any financial losses including it being destroyed. When a person lends this $50 bill to someone, the liability for it is transferred from the lender to the borrower. With such a transfer in liability also comes a transfer in any gains. In other words, the lender has no right to any profit at all, but any gains are the deserved right of the bearer of the liability, the borrower. This maxim strikes a fair balance between responsibility and benefit.

According to another Islamic financial maxim, liability is an obligation accompanying gain (al-ghunm bil-ghurm). This can be combined with teachings that prohibit the seller from selling what he does not possess to provide a more holistic understanding. Besides banning riba, sharī‘ah also forbids gambling (maysir), as well as deals that include hidden consequences (gharar) and excessive inequality (ghabn) between counter values.²¹⁸ While sharī‘ah encourages private ownership, it recognizes the duty of each individual to society as expressed in zakāh. Almsgiving not only redistributes income in society, but maintains a feeling of community in which people care for one another. In brief, sharī‘ah injunctions, whether those preventing harm or encouraging good, affect every stage of the economic cycle including ownership, production, distribution, exchange, and consumption.

The second characteristic of the Islamic economic system is its anthropocentricity. The objective of this system is to achieve an honorable living for humankind, one where people are content on both the material and non-material fronts.²¹⁹ To facilitate this objective, sharī‘ah permits the consumption of good and lawful food, the procurement of clothing, housing, and means of transportation, permits marriage, and encourages beautification. For example, the Divine says, “O mankind, eat from whatever is on earth [that is] lawful and good” (2:168).²²⁰ From a non-materialistic perspective, the Qur’ān directs people toward recognizing that true felicity lies in acknowledging God’s favors, being satisfied with what He has provided, having a clean heart, and being thankful to the Divine.²²¹

Sharī‘ah makes the community as a whole collectively responsible (far kifāyah) for ensuring the survival of professions that are necessary for fulfilling community needs. Being collectively responsible means that if some members of the community fulfill this obligation, then the whole community is rewarded and those who carried it out in particular receive supererogatory reward. If nobody fulfills the obligation, then everyone becomes blameworthy. Making the community collectively responsible for development encourages the community to adopt a holistic perspective when planning, builds a team spirit among community members, and motivates individuals to work toward fulfilling that which contributes to everyone’s well-being. Using this notion, different professions are given the chance to advance, thereby limiting the negative effects that occur when some professions advance at the expense of others.

Ahmed observes that besides development being a duty, three related aspects need to be considered: achieving maximum efficiency, staying within the boundaries of the lawful, and giving priority to producing necessities and primary goods used in manufacturing necessities.²²² In line with these aspects he defines development as “a structural change in the socio-economic environment, taking place concurrently with adoption of Islamic laws and ethical values, and triggering off [sic] human productive capacities towards maximum and best possible utilization of available resources, within balance between material and spiritual targets.”²²³

The third characteristic of the Islamic economic system is its morality. The scholars of sharī‘ah have paid careful attention to developing the morals of people, the fabric of society. Using these morals, individuals engage in business and undertake different endeavors in their lives. These morals promote sincerity, honesty, trustworthiness, discipline, kindness, altruism, humility, generosity, patience, respect, virtuosity, and moderation. At the same time, they protect against greed, miserliness, envy, jealousy, anger, cheating, harshness, and oppression.²²⁴ The effects of these qualities on individuals and their social and business dealings do not require much elaboration. Using these qualities and other teachings of sharī‘ah, humankind may reach the pinnacle of belief, isān, which is defined as “worship[ping] God as though you see Him, and if you cannot see Him, then indeed He sees you.”²²⁵ Such consciousness of the Divine should intrinsically motivate people to duly observe their responsibilities with great care.²²⁶

But sharī‘ah pedagogy on morals does not stop here. It further identifies specific subsets of professionals within society on which the livelihood of the general public depends and further imbues these individuals with specific traits. For example, it addresses merchants and instructs them to go beyond being fair in business dealings to displaying leniency: “May Allah show mercy to a man who adopts a kind [lenient] attitude when he sells, buys, and demands the repayment of loans.”²²⁷

Much of the financial turmoil that the world has faced in recent times can be attributed to unethical practices that are a result of weak morals of individuals involved in the business world. Different forms of fraud including misrepresentation of risks and predatory lending played a key role in the 2008 financial crises. Investment banks also practiced deception by designing and marketing mortgage backed securities that were made to fail and went a step further by betting on the failure of these securities.²²⁸ These immoral practices, which have inundated the financial world, have rightfully shaken people’s confidence in the industry. As one reporter observes: “For the fact is that much of the financial industry has become a racket – a game in which a handful of people are lavishly paid to mislead and exploit consumers and investors. And if we don’t lower the boom on these practices, the racket will just go on.”²²⁹

A U.S. inquiry into the financial crisis found financial institutions and credit rating agencies guilty of greed and incompetency. But the unscrupulousness does not end there. In fact, hardly a day goes by without reading about some messy unethical business practice that has been exposed. The London Interbank Offered Rate (LIBOR)²³⁰ fixing scandal is one recent example. Institutions and individuals across the globe once believed that LIBOR was an honest gauge of the rate at which banks were lending to one another; thus, billions of transactions took place on the basis of LIBOR. But reality has revealed otherwise. Bank traders colluded to manipulate this fragile index and did so quite openly as if it was no big deal!²³¹

The general public has had enough of these unconscionable practices, which seem to be unending. They question the role of the most rudimentary ethics in the business world:

We have seen it in investment banks where Chinese walls have been ignored and information freely passed about. We have seen it in accounting scandals where auditors were more concerned about contracts than credibility. We have seen it in transactions where the bank was more worried about its own well-being than its clients and now we are seeing it in a case where a bank attempts to rig the entire market. Now it is time to get the drains up and start cleaning out the sewage. And it is about more than just firing the miscreants and fining the banks. It is truly about back to basics. Ethics. Integrity. Honesty. Old fashioned words which never go out of date but which have become buried under the weight of money that corrupts the financial world. Somewhere along the moral compass of those involved became corrupted and they forgot dictum [sic] like “my word is my bond.” Business schools no doubt shoulder part of their blame. After all, they are the ones who should add a much healthier respect for rules and regulations. As one lawyer once said by all means go around, bend and twist the rules …but never break them.²³²

One individual tasked with submitting Barclays’ LIBOR rates to regulators wrote back to a derivatives trader who had placed a request for a high one-month and low three-month U.S. dollar LIBOR submission the following:

For you … anything. I am going to go 78 and 92.5. It is difficult to go lower than that in threes, looking at where cash is trading. In fact, if you did not want a low one I would have gone 93 at least.²³³

These corrupt practices underline the unfortunate dissociation between morals and business that has appeared in our world. This dissociation can be found not only in western economies, but also in much of the Muslim world where corruption has become a major impediment to economic development. Returning to our previous example, evidently the Barclays rate submitter was willing to do anything to fulfill the trader’s request! Unlike Machiavellian principles wherein the ends justify the means, sharī‘ah prohibits using immoral avenues to attain one’s goals and lays out clear guidelines for acquiring property.²³⁴ Riches attained through graft by using Ponzi schemes or other dubious methods that include cheating, bribery and the like or those amassed via unfair contracts that include interest, excessive ghabn, gharar, lack of consent, and coercion are prohibited because they lead to injustice, animosity, and have detrimental effects on the well-being of mankind. Al-Qurubi says of verse 2:188, which reads, “And do not consume one another’s wealth unjustly or send it [in bribery] to the rulers in order that [they might aid] you [to] consume a portion of the wealth of the people in sin, while you know [it is unlawful]”:

This communication addresses the whole nation of Prophet Muhammad peace be upon him, and it means do not consume each other’s wealth unjustly. This includes gambling, deception, coercion, denial of rights, anything that an owner has not consented to give up, or anything prohibited by sharī‘ah even if the owner consents to giving it up such as the fee paid to a prostitute or a fortuneteller, and the cost of alcohol and pork, and others. […] Whoever takes the wealth of others in a manner that is not permitted by sharī‘ah, has unjustly consumed it, and a form of this unjust consumption is for a judge to rule in your favor when you know that you are wrongful, because the unlawful does not become lawful merely because of a judge’s ruling, since the judge bases his ruling on what is apparent.²³⁵

Sharī‘ah also establishes a direct relationship between a person’s income and their worship rituals by teaching that unlawful income prevents the acceptance of good deeds:

Surely, Allah, The Exalted, is good [pure] and only accepts what is good. Allah has ordered for the believers what He has ordered for the Messengers. And He, The Exalted, said: “O Messengers! Eat of the lawful [foods] and do righteous deeds.” (23:51) And: “O you who believe! Eat from the lawful [foods] that We have provided for you.” (2:172) Then he mentioned a man who – having travelled far – is disheveled and dusty. He stretches his hands to the sky [saying]: ‘My Lord! My Lord!’ – while his food is unlawful, his drink is unlawful, his clothes are unlawful, and he is nourished unlawfully; so how can his supplication be accepted?²³⁶

As mentioned earlier, the teachings of sharī‘ah do not only cover the methods by which a person attains property, including the terms and conditions of contracts, but also the goods themselves and the industry to which they pertain. Repugnant foods, such as pork, and drinks, such as alcohol, are prohibited because of their harmful effects. As for industry, anything that leads to harming oneself, breeds ills in society, or leads to injustice is excluded including tobacco, pornography, gambling, and interest-incurring financing.²³⁷

The fourth characteristic of the Islamic economic system is its realism. In most current day markets, the financial and real sectors of the economy are out of proportion with one another. The former has become severely detached from the latter and has proliferated at an exponential rate of its own, as evidenced by the massive derivatives markets. In an Islamic economic system, however, this should not happen, because a solid association must exist between the financial sector and real goods and services in the economy.

The principles of sharī‘ah give rise to Islamic financing, which is “asset based financing because it deals with real goods and services by means of contracts that create either debts or asset ownership.”²³⁸ In other words, the Islamic financial sector plays a supportive role to the real economy. Recently, Sarkis Yoghourtdjian of the Board of Governors of the Federal Reserve System in the U.S. has called for rebooting of the culture of finance such that banking serves the real economy and not the other way around.²³⁹ Elaborating on the realism of the Islamic economic system, Kahf observes that it

does not accept to be based on unreal assumptions or illusions: that money, given as debt, increases in the properties of others while in reality it does not grow; that a market may exist to trade debts while in reality this market is fabricated and that a rate of increase (or a price of time) may exist for a loan while this is a pure illusion!²⁴⁰

His main argument is that in reality a debt is an abstract asset that does not increase or decrease in value unless imaginary assumptions are introduced, such as the ability to value debts in relation to time, and the creation of markets for trading them.²⁴¹ Kahf also highlights the similarities and differences between loan-based interest-incurring financing and sale-based profit-incurring financing.²⁴² The first similarity is that payment in both methods is deferred – a key benefit of financing. Secondly, the total amount paid in both deferred payment methods is greater than if the item were purchased in cash on a spot basis. The gain is interest in conventional financing and profit in Islamic financing. The amounts gained may be at par with each other. Ideally, the forces of supply and demand determine these amounts, assuming that market inefficiencies are close to non-existent. Finally, in both methods a debt is created.²⁴³ These are some of the main similarities shared between these two methods of financing.

Differences also exist. The first difference between the two methods is that in interest-incurring financing a loan contract is used between the transacting parties, whereas in profit-incurring financing an exchange contract is used. The characteristics of these categories of contracts are fundamentally different. A loan contract creates a debt that does not increase over time; thus, any increment is classified as prohibited interest. While the guidelines permit the use of loan contracts, the usage of this category of contracts is limited to engaging in charitable activity in which the financier does not earn a profit. This form of financing, while having its merits in promoting social cohesion in the community and contributing to the building of trust, is not suitable for business purposes where profit is sought. The jurisprudential rules authorize the use of a different set of contracts with separate terms and conditions for those wishing to partake in profit earning transactions. In contrast to the commutative contracts, these contracts are identified as exchange contracts and could be categorized into three main transaction categories (sale, lease, partnership).²⁴⁴

The fifth characteristic of the Islamic economic system is its moderation. The system balances between human inquiry and divine revelation. This challenging feat takes into account detailed texts from the Qur’ān and sunnah, general sharī‘ah principles that lay a solid ethical foundation for the discipline, and jurists’ rulings that result from ijtihād. Through this three-pronged approach, constant principles and changing variables are integrated to facilitate human innovation. Such innovation is needed and welcomed as long as sharī‘ah principles are maintained.

The books of Islamic transactional jurisprudence (fiqh al-mu‘āmalāt), which document the ijtihād of scholars, especially scholars of the early generation, are an important reference used in ijtihād. Nevertheless, these rulings are not considered binding unless they are extracted from revealed texts that have definite authenticity and linguistic meaning or a certain level of consensus is reached in their regard. Otherwise, qualified jurists of each new era are obliged to derive new rulings for the novel situations that they encounter. This balanced approach to inquiry has allowed the Islamic economic system to benefit from the best of revelation and human thought. It is not surprising then to find that the resulting Islamic economic system contains aspects of other systems, including:

[a] free market-exchange with emphasis on honoring consensual contracts (some will see it as à la capitalist free market), prohibition of monopoly (à la interventionism), great concern about the satisfaction of the basic human needs and about economic justice (à la socialism) and assignment of a substantial chunk of natural resources to the whole society as represented by its government (à la communism). Add to it all, the prohibition of interest that denies any rewardability to most of the purely financial transactions unless it is formed as [a] means of production and thus deprives them from the functionality that is conventional in the capitalist framework.²⁴⁵

Another example of this moderation is found in sharī‘ah’s balanced perspective on property. First, it acknowledges human love for wealth: “And you love wealth [or property] with immense love” (89:20).²⁴⁶ Second, it recognizes the benefits of wealth by calling it “good” (khayr): “And indeed he [man] is most ardently devoted to the love of wealth [khayr]” (100:8). Third, it regards wealth as a means for erecting (qiyāman) a good livelihood for people: “And do not give the weak-minded your property, which Allah has made [qiyāman] for you” (4:5). Ibn Al-Fāris (d. 395 AH/1005 CE) says that wealth is called māl because people’s hearts are inclined toward it (yamīl ilaihi al-nās bil-qulūb).²⁴⁷ Prophet Muhammad (pbuh) underlined the significance of spending wealth prudently: “There is no asad²⁴⁸ except in two cases: a person whom Allah has given wealth and he spends it in the right way, and a person to whom Allah has given wisdom and he makes his decisions accordingly and teaches it to others.”²⁴⁹

After recognizing the merits of wealth, sharī‘ah balances its outlook by warning people against vigorously competing for it and becoming engulfed in the materialistic world at the expense of the spiritual one: “It is not poverty that I fear for you, but I fear that this world will be spread out in front of you as it was spread out in front of those before you, and then you will vie for it as they vied for it, and it will destroy you as it destroyed them.”²⁵⁰ The Islamic economic system is to help people establish their livelihood, but also to help them work toward their higher objectives of life.²⁵¹ If correctly implemented in a holistic manner, it should go beyond facilitating the necessities for people and allow them to lead comfortable lives. In fact, prophet Muhammad (pbuh) taught his companions to supplicate against poverty and disbelief, as the former can lead to the latter.²⁵² Sharī‘ah also considers wealth a test that determines the extent of gratefulness of a person to the Divine.²⁵³

Sharī‘ah warns against making the economic aspect the main focus of one’s life because this is believed to lead down a materialistic path that lacks the spiritual dimension: “O you who have believed, let not your wealth and your children divert you from remembrance of Allāh. And whoever does that, then those are the losers” (63:9). Humankind is thus instructed to adopt a balanced approach that combines the benefits of this world and the hereafter: “But among them is he who says, ‘Our Lord, give us in this world [what is] good and in the Hereafter [what is] good and protect us from the punishment of the fire’” (2:201). The Qur’ānic verses and aādīth that warn against being distracted by material blessings or that denigrate wealth must not be misconstrued to mean a general imprecation against such a blessing. Texts that belittle wealth refer to wealth that captures the person’s heart and preoccupies it, thereby making the individual forget the cardinal duties such as prayer and zakāh. These texts could also specifically refer to unlawful wealth, or wealth that leads to despicable competition, hatred, and destruction, or wealth that is spent in unlawful ways thereby causing corruption.²⁵⁴ Otherwise, wealth is viewed as a favorable fortune for one who recognizes and fulfills divine commandments in its regard: “The best of good wealth is for the pious person”;²⁵⁵ “Allah loves the pious, rich believer who does not show off.”²⁵⁶ In fact, prophet Muhammad (pbuh) taught his followers to ask for an increase in provisions, including wealth: “O Allah, I ask you for beneficial knowledge, plentiful provision, and healing from every disease.”²⁵⁷ In other words, property is a means for achieving benefits in this world and the next. Such property could be used to attain good or bad objectives. If a person chooses to employ his property for harmful purposes, then his actions are to be criticized and not wealth in and of itself.

It is possible nonetheless to misconstrue some texts on this issue. Ibn Al-Jawzi (d. 597 AH/1201 CE) states that some sincere Sufīs of the early generation gave up their possessions and led a life of poverty because they feared the bad consequences of wealth. He remarks that even though these individuals had good intentions, they were not knowledgeable enough to resist these misinformed thoughts and instead were trapped by them. He taught that acting along this line of thought can lead people to seek financial assistance from others, whether individuals with legitimate monies or those with dubious funds, and thereby be humiliated. It also may lead a person to impoverish their own children. Ibn Al-Jawzi observes that if such individuals had enough savings, or had they been professionals, then ridding themselves of their property might have been a little more understandable, since they would still have been able to cover their own expenses. He expresses astonishment over how these learned individuals advocate such views even though they contradict logic and sharī‘ah.²⁵⁸

Many Sufīs have misinterpreted the meaning of asceticism (zuhd) to mean a form of monasticism, which is prohibited in sharī‘ah, and impoverishment. The zuhd that sharī‘ah calls for relates to the spiritual rather than the material side of things. Sharī‘ah does not prohibit the enjoyment of lawful things, but rebukes those who turn their backs on the spiritual dimension and limit their interests to the materialistic world.²⁵⁹ In fact, the scholar Abdullah ibn Abu Ad-dunya (d. 281 AH/894 CE) gathered in his book Islāh Al-Māl, or the reformation of property, many aadīth and sayings of the companions and their successors regarding the merits of owning property. For example, it is reported that Abdullah ibn Al-Musayyib who left behind great wealth and on his deathbed said, “O Allah, You know that I did not gather it [wealth] except to safeguard my religion, establish my ties of kinship, save my face [from asking others], and pay my debts. There is no good in a person who does not gather property to save his face, establish his ties of kinship, pay off his debts, and safeguard his religion.”²⁶⁰

After referencing texts that emphasize the merits of wealth, Ibn Al-Jawzi corrects some of the misinformed views, points to the temptations of wealth, and emphasizes the importance of having a good intention:

These ahadīth are verified in the authentic ahadīth books and they are contrary to what Sufīs believe, namely, that increasing wealth is an obstacle [to getting closer to the Divine] and a punishment, and that saving wealth contradicts placing one’s trust in Allah. One does not deny that wealth may serve as a temptation and that therefore many people have avoided, and that earning it lawfully is a hard task, maintaining a pure heart in the face of its temptations is difficult to achieve, and occupying one’s heart with the remembrance of the hereafter in its presence is rare. Hence, its temptation is feared. Earning wealth, if confined to earning an amount enough to maintain one’s living, is a necessity that cannot be avoided. But if one’s intention is to amass and increase wealth in a legal way then we should investigate the person’s purpose. If the person meant this for bragging and flaunting, then this is the worst objective. If the person meant this to provide for himself and his family, to save it for calamities that may befall him or his family, to spend it on brothers, to help the poor, and to do good deeds, then he will be rewarded for his intent. Accumulating wealth with such an intention is far better than many good deeds. The intentions of many companions [of prophet Muhammad (pbuh)], may Allah be pleased with them all, in accumulating wealth were good because of their good objectives. Thus they were keen to accumulate it and asked [the Divine] to increase it.²⁶¹

In fact, Ibn Al-Jawzi identifies poverty as an illness and disagrees with Al-Ghazāli’s view that lack of property is better than its existence. Al-Ghazāli recommends that people keep only an amount sufficient for their basic needs. In contrast, Ibn Al-Jawzi notes that there is no disagreement among scholars that, if the person has a correct intention then accumulating lawful wealth is better than forgoing it. He supports his view by mentioning that prophets Ibrahim and Shu‘aib (pbut) both had wealth and by reviewing some of the sayings of prophet Muhammad’s companions.²⁶²