Shari’ah Board, The Task of Fatwa, and Ijtihad in Islamic Economics, and Finance

Alsayyed, Nidal (2009): Shari’ah Board, The Task of Fatwa, and Ijtihad in Islamic Economics, and Finance.

Abstract

The rulings of Mua‟malat in today‟s Islamic Economics, and Finance can be adapted through the process of Ijtihad. While the basic principles or doctrines of the Mua‟malat are given in Shari‟ah, the interpretation of these principles to suit circumstances in different times and places constitutes the Fiqh Mua‟malat. New rulings can be reached by understanding the effective cause (Illah) and rationale (hikmah) of the original ruling and the importance of Maslaha (benefit) under the changed circumstances (Usul Fiqh); which is normally evaluated by the Shari‟ah Board members of the concerned entity. Fatwa issuing via Ijtihad is used to derive laws from the basic principles of Shari‟ah to address the needs of people in different places and times. The important aspect of these new rules is that they may at times change depending on the context of application. Islamic Finance contemporary practices of Ijtihad through various bodies like Islamic Fiqh Academy, have resolved the practice of taqlid (limitation). The doctrine of maqasid al-Shari‟ah establishes Maslahah as an essential element of the ends of law, so that it becomes an important goal in framing new rules (Shari‟ah parameters and guidelines) through Ijtihad. Thus, both the principles set by Shari‟ah and use of Ijtihad to frame new rules has Maslahah or benefit of people as the underlying basis and goal. On the other hand; the standardization of Shari‟ah may become against the fundamental premise of Ijtihad which has existed for centuries and especially in today‟s finance. If rules become standards, and imposed by legal authorities, then Ijtihad cannot be applied towards a critical and dynamic industry like Islamic Finance today. This will eventually damage the very reason that we are able to apply Shari‟ah in all times and places, that is, Ijtihad is the main reason why Shari‟ah is dynamic and is able to be applied in different circumstances. In addition; to standardize Shari‟ah rulings may mean the precedence of one Islamic school of thought over the other, which cannot be universally acceptable. There is no doubt that the synchronization of these two views has to be done through mutual understanding and collaboration between Shari‟ah scholars and various Shari‟ah key board members, market leaders, and regulators. To be very clear and accurate, the question of whether Shari‟ah standards can be harmonized is a matter to be dealt with by Shari‟ah scholars and not market professionals or regulators. The simple reason for this is because Shari‟ah scholars are specialized in their field and whether a Fatwa can be standardized or not is a matter of religious reasoning and should be taken from Shari‟ah own instructions and judgments.

• Item Type: MPRA Paper
• Language: English
• Keywords: Fatwa , fatawa , Ijtihad , Shari’ah Board, Islamic Economics Jurisprudence , GCC , Ijma,
• Subjects: Z - Other Special Topics > Z1 - Cultural Economics ; Economic Sociology ; Economic Anthropology > Z12 - Religion; A - General Economics and Teaching > A2 - Economic Education and Teaching of Economics > A23 - Graduate; Z - Other Special Topics > Z0 - General > Z00 - General; F - International Economics > F0 - General > F02 - International Economic Order and Integration

References

Sundararajan, V. (2005), “Risk Measurement, and Disclosure in Islamic Finance and the Implications of Profit Sharing Investment Accounts,” Paper prepared for the Sixth International Conference on Islamic Economics, Banking, and Finance, Jakarta, Indonesia, November 22–24.

El-Hawary, D., W. Grais, and Z. Iqbal (2004), “Regulating Islamic Financial Institutions: The Nature of the Regulated,” World Bank Policy Research Working Paper, No. 3227. March.

Bessis, J. (2002) Risk Management in Banking, John Wiley & Sons, London.

Dr Salman H Khan (2009), Islamic Finance News (IFN Issue 35- 2009), “Why Tawarruq Needs To Go”: AAOIFI and the OIC Fiqh Academy: Divergence or agreement?

IFN ASIA WORKSHOP (2009), Islamic Finance News (IFN Issue 33- 2009),New Focus

Islamic financing for Parkway Life REIT (2009), Islamic Finance News (IFN Issue 31- 2009), Product development.

Zeti Akhtar Aziz (2007): “Potential role of Islamic finance in strengthening the New Silk” Road “; Special address by Dr Zeti Akhtar Aziz, Governor of the Central Bank of Malaysia, at GIFF Investors & Issuers Forum: "Islamic Finance: The New Silk Road", Kuala Lumpur.

Newman, P., M. Milgate and J. Eatwell, eds., (1994) The New Palgrave Dictionary of Money and Finance, McMillan Press, London.

Ibn-Baz (2005). Paying Zakah to Earthquake Victim. IslamOnline.Net. Place Published http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-

AAOIFI (2006), Accounting, Auditing and Governance Standards for Islamic Financial Institutions, Bahrain: Accounting and Auditing Organization for Islamic Financial Institutions

Ahmed, Shaghil (1989), ‘Islamic banking and finance. A review essay’, Journal of Monetary Economics, 24, 157–67.

Chapra, M.U. (1985), Towards a Just Monetary System, Leicester: The Islamic Foundation.

Cizaka, M. (1995), ‘Historical background’, Encyclopedia of Islamic Banking and Insurance, London: Institute of Islamic Banking and Insurance, pp. 10–14.

Crone, P. (1987), Meccan Trade and the Rise of Islam, Oxford: Basil Blackwell.

Fender, I. and J. Mitchell (2005), ‘Structured finance: complexity, risk and the use of ratings’, BIS Quarterly Review, June, 67–79.

Gopal, M.H. (1935), Mauryan Public Finance, London: George Allen & Unwin.

Grimsey, D. and M.K. Lewis (2004), Public Private Partnerships: the Worldwide Revolution in Infrastructure Provision and Project Finance, Cheltenham, UK and Northampton, MA, USA: Edward Elgar.

Al-Qaradawi, Yusuf (1989), The Lawful and the Prohibited in Islam, Kuwait: International Islamic Federation of Student Organizations.

Al-Zuhayli, W. (1997), Al-Fiqh Al-‘Islami wa ‘Adillatuh, 4th rev. edn, Damascus: Dar Al-Fikr.

Mannan, M.A. (1982), Islamic Perspectives on Market Prices and Allocation, Jeddah: CRIE.

Rahman, Afzalur (1979), Economic Doctrine of Islam, London: Muslim Schools Trust.

AbuSulayman, A.A. (1988), ‘The Islamization of knowledge: a new approach toward reform on contemporary knowledge’, Proceedings & Selected Papers of the Second Conference on Islamization of Knowledge, Herndon, VA: International Institute of Islamic Thought, pp. 91–118.

Ahmad, K. (2004), ‘The challenge of global capitalism – an Islamic perspective,’ in J.H. Dunning (ed.), Making Globalization Good, Oxford: Oxford University Press.

Al-Faruqi, I.R. (1982), Islamization of Knowledge: General Principles and Workplan, Herndon, VA: International Institute of Islamic Thought.

Al-Faruqi, I.R. (1988), ‘Islamization of knowledge: problems, principles, and prospective’, Proceedings & Selected Papers of the Second Conference on Islamization of Knowledge, Herndon, VA: International Institute of Islamic Thought, pp. 13–64.