1 Introduction
From the perspective of the Western legal system, modern principles are extremely basic. It is precisely because secularism is such an intrinsic part of our thinking that we mention its principles. Indeed, secularism is so fundamental to Western regulatory framework awareness that the laws generated from Islamic and other God-given or âreceivedâ legal frameworks can appear irrational and inflexible. Furthermore, in the absence of an understanding of the foundations underlying a non-secular legal system, Western ability to understand and appreciate revisions to the laws of such a system may be severely limited. In contrast, the scope and origin of Islamic law are fundamentally different from those of common and civil laws. The scope of Islam is not limited to religious matters. Rather, Islam is an entire way of life: it is a religion, an ethic, a lifestyle, and a legal system rolled into one, and includes economics and financial systems.
Western jurists are, consequently, empowered to alter their systems as social and economic demands emerge. Conversely, the two primary sources of Islamic law are the Qurâanâthe word of God, and the Sunnahâthe pronouncements and practices of the Prophet. Having sources that are, by nature, sacred and unchanging has influenced the legal system in a way that has restricted Islamic juristsâ power to interpret and amend laws according to contemporary values and needs.
1.1 Sources of the Islamic Legal System
Since the objective of Islamic law is to define and regulate an individualâs duties according to Godâs will, historically there has been no distinction between legal rules and rules of religion. Shariâah , or âthe Wayâ, is the term used to describe Islamic law. There are two primary, independent sources of Shariâah law: the Qurâanâthe Holy book of Islam, and the Sunnahâthe pronouncements and practices of the Prophet Muhammad (SAW). There are also three secondary sources: ijmaâ (consensus), qiyas and ijtihad (reasoning by analogy), which are not sources in the strict sense of term, but are means of revealing the law.
1.2 Al-Qurâan
The Qurâan is considered to be âthe bedrock of Islamic jurisprudenceâ. It represents, to Muslims, the word of God as revealed to and spoken through his prophet, Muhammad (SAW). Although more than 80 verses deal with topics Westerners would consider being legal matters, the 6000 verses that comprise the Qurâan constitute an entire code for a moral, spiritual and social life. The guidelines and commandments of the Qurâan, including those that can be termed as legal matters, must be read as an integrated whole, and not as individual parts. However, the scarcity of actual law within the Qurâan creates the need to look to other sources.
1.3 Al-Sunnah
The Sunnah, which literally means âcustomary procedure or actionâ or ânormâ, is a set of rules deduced from the pronouncements and conduct of the Prophet. When Qurâanic verses did not expressly address an issue at hand, Muslims resorted to the Sunnah, which became Muslim customary law. Over time, the notion of the Sunnah became more restricted. Currently, the Sunnah is regarded as being limited to the collective traditions, pronouncements and conduct of the Prophet, as opposed to tradition in general. The Sunnah includes stories or traditions of the Prophet, called hadith, as well as the prophetâs deeds and tacit approval of the actions or practices of others. The Sunnah is regarded as a source of law, second only in authority to the Qurâan.
The word âSunnahâ means a manner of acting, a rule of conduct, a mode of life. The term hadith refers to the report of a particular occurrence. Although, in the context of Islamic law, the words are often used interchangeably, hadith refers in particular to a tradition or story of the Prophet, while Sunnah signifies the rule of law deduced from the hadith.
1.4 Al-Ijmaâ
As Islam spread rapidly in Asia and North Africa, questions of personal and societal rights, obligations and relationships arose to which neither the Qurâan or the Sunnah could provide direct answers. Ijmaâ, a secondary source, provided a way to meet the needs of changing times. Ijmaâ, which literally means âunanimityâ, is a way of discovering the law by resorting to the general consensus of opinion among Islamic legal scholars of a particular era.
Rules unanimously agreed, provided they do not conflict with the Qurâan or the Sunnah, become fixed and definite elements of Islamic jurisprudence. At first glance, ijmaâ may appear to be a built-in mechanism for integrating Islamic teachings with evolving social practices and technology. However, the Hanbali school of Islamic law, to which Saudi Arabia subscribes, has historically limited ijmaâ, recognizing only the ijmaâ of the companions of the Prophet.
1.5 Al-Qiyas
If the Qurâan, the Sunnah, and ijmaâ fail to provide a rule that adequately addresses a problem, jurists may, as a last resort, use qiyasâlogical reasoning by analogy to precepts of the Qurâan or Sunnah. Essentially, by using qiyas, the underlying principles of the Qurâan and Sunnah may be extended by analogy to deal with matters similar, but not identical, to those covered by the Qurâan and Sunnah.
Imam Shafiâi (AD 767â820) was the founder of the Shafiâi school. His leading work, Risala, sets forth a fixed framework of rules within which qiyas can be used. To Shafiâi jurists, qiyas, through the proper application of these rules, effectively became a fourth source of law. Adherents to this school are mostly in southern India, southeast Asia, east Africa, and the Arabian coastline.
1.6 Al-Ijtihad
Early in the evolution of Islamic law, any qualified Islamic jurist had the authority to reason and interpret original sources of the law independently through a process known as ijtihad. Ijtihad literally means âeffortâ, âendeavourâ and, in the Islamic legal context, means âindependent judgement of a legal or theological questionâ. Ijtihad allowed Islamic jurists to interpret the law when circumstances demanded, presumably through logical reasoning.
By the ninth and tenth centuries, the notion of using human reasoning to interpret the Divine word fell out of favour; increasingly, it was argued that nothing more could be gained through interpretation and reason. By the tenth century, ijtihad was repudiated in an event called âthe closing of the gate of independent reasoningâ. Jurists were regarded as muqallids, âthose whose duty it was to accept the opinions of their great predecessors without the exercise of private judgementâ.
Although ijtihad and qiyas may appear to be identical, they are distinct concepts. Ijtihad connotes the entire field or process of ascertaining the terms of Shariâah law, whereas both qiyas and ijmaâ can be viewed as products of ijtihad. Without the general endeavour to determine Shariâah principles by using independent reasoning, consensus and reasoning by analogy would have never evolved. Qiyas and ijmaâ can also be regarded as particular ways in which ijtihad is expressed; for example, by reasoning through analogy or through consensus.
2 The Islamic Financial System
Some of us may wonder what the financial world would be like were Islam to become the basis of the present day financial system. Could it have prevented the stock market and currency crises from occurring? Some will say that this depends on the version of the Islamic financial system (IFS) that we have now. In Malaysia, the IFS has been moulded along conventional philosophy but blended to claim Shariâah legitimacy by virtue of contracts employed in financial transactions. In essence, a financial system is a set of rules and regulations or principles that governs the flow of funds from the surplus spending unit (SSU), to the deficit spending unit (DSU). The household, business and government sector...