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The Higher Objectives of Sharia (Maqasid) are a Shield Protecting Islamic Banking
Author : Dr. Safwan Odaybat
Date Added : 02-10-2024

Considering the Higher Objectives of Sharia (Maqasid) as a Safeguard for Islamic Banking

 

All perfect praise be to Allah the Lord of the Worlds. May His peace and blessings be upon Prophet Mohammad and upon all his family and companions.

Islamic banking is an integral part of the contemporary Islamic economic system, encompassing everything related to the transactions of Islamic banks and financial institutions, including financing, investment, and services.

The various Islamic financial institutions represent an effort to institutionalize a significant part of the Islamic financial system and codify it into rulings and fatwas that reflect the practical reality connecting these institutions with others or with individuals in society through financing and investment mechanisms, while also considering the social and ethical aspects related to their nature of work.

The emergence of these Islamic financial institutions is associated with noble goals, foremost among them being the establishment of an Islamic alternative to the prevailing traditional (usurious) system.

The experience of Islamic banking is a human endeavor, as it is an attempt to apply financing, investment, and service operations from an Islamic perspective. This makes it susceptible to criticism and evaluation and serves as a field for innovation and change. Annual conferences and periodic seminars are held to study this situation, identify weaknesses and strengths, improve standards, and initiate change.

It goes without saying that directing criticism toward the application or describing it as weak does not mean criticizing or undermining the general principles in Islamic Law of the case under consideration. The application of principles and general rules is a matter of conjecture, a human effort that may contain errors and correctness and varies from one jurist to another depending on differing understandings. However, the principles and general rules themselves are definitive matters that are unanimously agreed upon.

These principles and general rules, which we consider the basis for applying operations and services in Islamic banking, relate to the objectives of Sharia, the prohibition of evasive legal devices, and the consideration of the outcomes of rulings.

Considering the objectives of Sharia serves as a protective barrier for Islamic banking against the pitfalls of fatwas, the errors of justification, the exaggeration in religious matters, and the transformation of jurisprudence from innovative and renewal-oriented to merely patching up issues.

Moreover, consideration of the objectives of Sharia contributes to regulating evidence, meaning it monitors the processes of interpretation, inference, analogy, and Ijtihad through its various channels. [Objectives of Sharia and Economic and Financial Transactions, Dr. Abdul Latif Al-Sabbagh, presented at the Wednesday Dialogue at the Islamic Economics Research Center on 16-2-1420 AH, p. 13].

If we aim to correct the trajectory of Islamic banking, enhance its management, and justify its existence as a true alternative to usurious institutions that satisfy individuals' needs and contribute to the preservation of the nation's system and strength, this cannot be achieved through mere reactionary measures that monitor usurious banking and attempt to imitate it under an Islamic guise. Instead, it requires a collective effort to develop an Islamic economic system that originates from the essence of Islam, which is founded on the consideration of the objectives of Sharia.

The prominent scholar Muhammad Al-Tahir Ibn Ashour (d. 1973) referred to this in his works: "It has been established among our scholars that the preservation of wealth is one of the foundational rules of Sharia that fall under the category of necessity. Their discussions indicate that the system for the growth of wealth and methods of its circulation constitute the majority of issues related to needs, such as sales, leasing, and Salam (Forward buying) contracts. I have mentioned in the previous section that the most important objective is the preservation of the nation’s wealth and its provision for the nation. Since the nation's wealth is collective in nature, its preservation occurs through regulating the methods of its overall management and the means of preserving individuals' wealth, as the preservation of the collective depends on preserving its components. Most of the financial legislation is related to the preservation of individuals' wealth, which ultimately leads to the preservation of the nation’s wealth, as the benefits of private wealth return to the public benefit of the nation's wealth" [Objectives of Islamic Legislation, Muhammad Al-Tahir Ibn Ashour, Dar Al-Kitab Al-Misri, Cairo, Dar Al-Kitab Al-Lubnani, Beirut, introduction by Hatim Bou Sema, 1st ed., 2011, pp. 297-298].

We notice in the words of this eminent juristic scholar a remarkable connection between the general and the specific, between objectives and means, and between the necessary and the need-based. The preservation of the nation's wealth is a necessary general objective, for which specific need-based means have been established, including the system for the growth of wealth, which encompasses all Sharia investment operations, means of circulation, and trading methods.

Furthermore, one of the necessary means to maintain the objective of preserving the nation’s wealth is regulating the management methods of its overall wealth, which includes official government management of funds, and regulating the preservation of individuals' wealth and the means of managing it, which includes private management of funds and banks.

It is also important to emphasize the significance of grounding Islamic banking fatwas in the general objectives of Sharia and considering the outcomes when issuing financial fatwas. In this regard, Imam Al-Shatibi — may Allah have mercy on him — stated: "Considering the outcomes of actions is a Sharia intended goal. Actions, whether in accordance with or in opposition to the Sharia, must be assessed based on what those actions will lead to." [Al-Muwafaqat Fi Usul Al-Shari'ah by Imam Abu Ishaq Al-Shatibi, with commentary by Sheikh Abdullah Daraz, Dar Al-Hadith, Cairo, 2006, vol. 4, pp. 431-432].

In another context, Imam Al-Shatibi said: "Anyone who seeks in the duties of Sharia something other than what it was intended for has contradicted Sharia, and anyone who contradicts it has invalidated their actions." [Al-Muwafaqat Fi Usul Al-Shari'ah by Imam Al-Shatibi, vol. 2, pp. 495].

Thus, it is a comprehensive reform project aimed at rectifying the course of Islamic banking, striving to develop it, and enabling it to compete in a market lacking the meanings of the lofty objectives of Sharia, which are based on achieving benefits and warding off harm. This project relies on four foundational principles:

1. Prohibition of oppression.

2. Prohibition of usury/Riba.

3. Prohibition of uncertainty/Gharar.

4. Consideration of objectives and benefits. [These principles were mentioned by Imam Ibn Al-Arabi Al-Maliki (d. 543 AH) in his interpretation of the rulings of the Quran, edited by Ali Muhammad Al-Bajawi, Dar Iḥya Al-Turath Al-Arabi, Beirut, Lebanon, 1st ed., vol. 1, pp. 110].

When all aspects related to Islamic banking — administrative, technical, legal, and Islamic — adhere to the aforementioned four principles, there will be no oppression, no usury, no uncertainty, and no violation of the requirements of the Sharia objectives. At that point, we will have placed our foot on the path to genuine reform that leads to change, innovation, and development in various aspects of Islamic banking. There is no doubt that this project requires specialized and skilled scholars, sincere intentions, and high aspirations.

And indeed, Allah is The Granter of success.

 

The published article reflects the opinion of its author

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Summarized Fatawaa

What is the ruling on making up the regular pre-Dhuhr *sunnah* (*al-sunnah al-rātibah al-qabliyyah*) for one who missed it in the Dhuhr prayer?

All praise is due to Allah, and peace and blessings be upon our master, the Messenger of Allah.
Every timed supererogatory prayer (nāfilah) is recommended (mandūb) to be made up if its time passes. As for a nāfilah that precedes the obligatory prayer, performing it before the farḍ is a matter of proper etiquette (adab); if it is prayed after the farḍ, it is still considered adāʾ (performed within its time). If the time of the farḍ has ended, it is recommended to make up (qaḍāʾ) the nāfilah for one who did not pray it.
Whoever misses the sunnah before Dhuhr, whether with an excuse or without one, it is recommended for him to pray it after the obligatory Dhuhr prayer, within the time of Dhuhr, even at its end, and it counts as adāʾ, not qaḍāʾ. It is also recommended for one who missed the pre-Dhuhr sunnah to pray it before the post-Dhuhr sunnah, in observance of the proper order. It is stated in ʿUmdat al-Sālik wa ʿUddat al-Nāsik (Vol.1/p.60): "What precedes the obligatory prayer has the same time as the obligatory prayer, and performing it before the farḍ is a matter of etiquette; after it, it is adāʾ. What follows the farḍ has its time begin with the performance of the farḍ and end with the end of its time."
If the time of Dhuhr has ended, it is recommended for him to pray both the pre- and post-Dhuhr sunnahs, and they count as qaḍāʾ for both. It is stated in ʿUmdat al-Sālik (1/61): "Every timed nafl, such as the ʿĪd prayer, Duha, Witr, and the regular rawātib of the obligatory prayers, if it is missed, it is recommended to make it up forever." And Allah Almighty knows best.

What is the ruling on reciting aloud (*jahr*) in a silent (*sirriyyah*) prayer?

All praise is due to Allah, and peace and blessings be upon our master, the Messenger of Allah.
Reciting aloud (jahr) in the Fajr prayer, in the first two rakʿahs of Maghrib and ʿIshāʾ, and reciting silently (isrār) in the Dhuhr and ʿAṣr prayers is a sunnah. If the worshipper recites aloud where silence is prescribed, or the reverse, his prayer is valid, although it is better to follow the sunnah, in imitation of the Prophet (peace and blessings be upon him). Abū Hurayrah (may Allah be pleased with him) said: “In every prayer there is recitation. What the Messenger of Allah (peace and blessings be upon him) let us hear, we let you hear, and what he concealed from us, we conceal from you. If you add nothing to Umm al-Qurʾān (al-Fātiḥah), it suffices, and if you add to it, it is better.” Narrated by al-Bukhārī.
Shaykh al-Islām Imam al-Nawawī (may Allah have mercy on him) said in al-Majmūʿ (Vol.3/389): “The sunnah is to recite aloud in the two rakʿahs of Ṣubḥ (Fajr), Maghrib, and ʿIshāʾ, and in the Friday prayer, and to recite silently in Dhuhr, ʿAṣr, the third rakʿah of Maghrib, and the third and fourth of ʿIshāʾ. All of this is by the consensus of the Muslims, together with the mutually reinforcing authentic ḥadīths on the matter. This is the ruling for the imam. As for the individual worshipper (munfarid), it is sunnah for him to recite aloud according to us and according to the majority… If he recites aloud where silence is prescribed, or the reverse, his prayer is not invalidated, nor is there a prostration of forgetfulness (sujūd al-sahw) for it, but he has committed something disliked (makrūh).” And Allah Almighty knows best.

Is it permissible for someone who is unable to fast to pay the fidyah (ransom/compensation payment) to himself, due to his own poverty?

All praise is due to Allah, and peace and blessings be upon our master, the Messenger of Allah ﷺ.
It is not permissible, nor does it fulfill the obligation, for a sick person who is currently and permanently unable to fast to pay the fidyah (ransom/compensation payment) to himself, since it is a financial obligation owed by him, established as a standing debt upon him — much like any other debt he owes. If he were to pay it to himself, it would not thereby be discharged. So if he cannot find [anyone eligible to] pay it to, it remains a standing obligation upon him, and is not thereby waived. If Allah, the Mighty and Majestic, later grants him wealth, it becomes obligatory upon him to pay it out to the poor and needy.
Imam al-Khaṭīb ash-Shirbīnī (raḥimahullāh) said: "There is no difference in the obligation of the fidyah between the wealthy and the poor person; its benefit lies in its remaining established as a standing debt upon the poor person [until he is able to pay it] — and this is the more correct position (al-aṣaḥḥ), as indicated by the wording of ar-Rawḍah and its source text." [Mughnī al-Muḥtāj, Vol.2/P.174]
Accordingly: it is not permissible for a Muslim to pay the fidyah to himself while he remains poor. If the sick person is poor, he is not obligated to pay the fidyah immediately, and it remains a standing debt upon him until a time when he has sufficient means and wealth. And Allah, the Exalted, knows best.

Do pregnant and breastfeeding women have to fast?

Pregnant and breastfeeding women are required to fast. However, if fasting causes them harm or unusual hardship, they may break their fast but must make up for the missed days later.
If they break their fast solely out of fear for the fetus or the child, then they must both make up the fast and give fidyah (feeding a needy person for each missed day), as the benefit of breaking the fast was only for the child.