Economics Sharia Maxims

8/13/2019 Economics Sharia Maxims

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The economic revelance of

the Sharia Maxima

"Islamic economics is the knowledge and the application of the injunctions andthe rules of the Sharia in regard to acquisition and disposal of the availableresources for providing satisfaction to the individuals in order to enable them toperform their obligations to Allah' and the society".

In this definition the word injunctions signifies the prescriptive and the prohibitiveinjunctions of the ur'an and the Sunna. !he rules of the Sharia used in thedefinition signify the set of principles determined with precision and theirsubordinate legal maims which the great #uslim jurists have derived from the$o's and $on'ts to ensure and to determine the Islamicity of any act% institution orpolicy. !hese rules are the systematic eposition of the spirit of the legal tet

&nass intended to guide man towards different situations in human societythroughout the ages. !hey provide broad contours within which policy makingcan be pursued and its validity judged. !he legal maims% on the other hand% areamenable to trade(offs and substitutions.

)efore reproducing these rules and applying them% as far as possible% tocontemporary economic situations and problems it is necessary to take care ofthe following precautions that are necessary to protect one from fallaciousanalogy% misleading over(confidence and lapse*

+. ,ecourse may be made to reasoning based on these rules only if the

ur'an and the Sunna do not provide guidance on an issue. -onsensus ofearly jurists &Ijma also commands priority over the legal maims.Injunctions of the ur'an and instructions of the holy rophet are also tobe taken as a whole. !he method of deriving conclusions from them areknown and should be followed. /egal decisions based on them arecontained in the compilations made by great jurists and scholars.

0urists have also recorded the judgments and the opinions that are basedon the consensus &Ijma of early' ulama'. !his leaves a large number ofissues that require a decision keeping within the limits of the Sharia. 1oreample% the legal opinion in regard to profit(sharing in a joint venture is

that*

"rofit is to be distributed according to the agreement but loss is to beborne in proportion to capital contribution".

In this rule the ratio of the distribution of profit according to agreement canbe reviewed in light of business conditions. It may be left to the partners todecide the ratios of profit(sharing or otherwise an Islamic government or

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central bank may fi a range within which the partners should shareprofits. !he government may even lay down that% like losses profit(sharingwould also follow the ratio of respective capital contributions by differentpartners. !he liability of loss% however% has to be borne strictly inproportion of capital contribution since this rule enjoys the consensus of

the scholars. !he government has no right to change this ratio nor can thebusiness partners make an agreement that violates the rule. Similarly in)ay 'salam advance payment of cash is a condition that has been laiddown by consensus of '2lama'. $eferred payment or adjustment of priceagainst loan is not permissible. It is the consensus of '2lama' thatbusiness partnerships3&Shirka and #udaraba are treated as legal forms of

joint venture. !hus there can be disagreement about forming a joint stocklimited liability company% a trust% a cartel% a syndicate or a corporation butthe legality of Shirka and #udaraba may not be doubted.

4. It has to be fully kept in mind that all the injunctions of the Sharia seek to

benefit human beings and eliminate harm. )ut those benefits and harmsare not entirely left to the judgment of man. In a large number of casesthose benefits and harms have been specified in the ur'an and 5adithand should be made the criteria of judgment. In cases where benefits andharms are not pointed out human intellect will judge the virtue or vice ofany act. !hus intellect would be guided by sound reasoning% eperience%prevalent practice and sound judgment of scholars who have wellunderstood the spirit of the Sharia and are scrupulous. 6hether or notstate trading( should be allowed depends largely on eperience. Shouldthere be a difference in the wages of different workers and in the payscales of different categories of employees depends upon custom and

prevalent practice. Should any industry be nationali7ed in the interest ofthe community depends upon sound judgment of competent persons. !heSharia prohibits those trades and activities that involve ignorance anduncertainty since they may lead to disputes% strife and animosity. It issound judgment that will decide which forms of present day trades andactivities should be prohibited and which should be allowed and protectedby law.

8. !he eigencies of the situation sometimes require that a lawful act shouldbe disallowed for perseverance of public interest. Similarly there aresituations under which an unlawful act has to be tolerated during a shortperiod of contingency. )ut of the two situations% allowing an unlawful act ismuch more serious than banning a lawful act. !he safe and preferableway is to retain the essential illegality of the act even when it isunavoidable to have recourse to it under compulsion of circumstancesgovernment% for instance% may be compelled to pay interest on creditpurchases of military hardware. $espite this compulsion% however% itshould not be disregarded that payment of interest is unlawful and that

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serious thought should be given to eliminate that situation as quickly aspossible.

9. 6e are attempting here to identify only a few of the vast number of rulesthat the great jurists have laid down. Interpretation and application ofthese rules require thorough knowledge of Islamic law and jurisprudence.

:mphasis on a single rule ignoring the total perspective% its scope%qualifications and limitations may often lead to a blunder. Such is the casethat #uslim economists are advised to ignore these rules unless they areguided by reliable eperts of Sharia. ;evertheless% possibility of error ininterpretation and application by the author cannot be ruled out. !hereaders who may like to apply them ought to discuss their problems withscholars of authoritative competence on the subject rather than buildingupon this discussion.

6ith the above precautions the rules that seem to be relevant to economicpolicies and institutions may be briefly reproduced in the following pages. !hediscussion mostly contains the eamples that early jurists have adduced. Insome cases% however% eamples or contemporary situations have also beenadded.

(1) Claim and Practice:

!he ur'an insists that #uslims should demonstrate consistency in faith and

practice and in words and deeds &4*4+? 8


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will be contingent upon the intention with which he has picked it up. If he intendsto hand it over to the owner and has made it known to' others he will be treatedas a trustee and will not be required to indemnify the owner in case the propertyis destroyed while in his possession. )ut if he has kept it as owner he would betreated as a usurper% Bhasib% and will be required to indemnify the owner in case

the property is destroyed. !he rule is also amenable to performance of visiblydifferent acts leading to the achievement of the same object. /et us take aneample from our own times. ;ationali7ation of financial institutions in somecountries may be the result of political ambitions while in some others it may aimat correcting mismanagement and regulating credit? and yet in some othercountries it may be aimed at preventing foreign domination. ;ationali7ation insocialist countries has a deep(rooted philosophical basis and underlying rationalequite different from the one which prompts nationali7ation of key industries innon(socialist countries. Cn the other hand% different actions by different countriesby way of granting rebates on eport% making available easy credit to eporters%fiation of import tariffs% laying down licensing procedures and quota restrictions

in connection with imports etc.% may aim at achieving a common cause ofimproving the balance of payments position. !he relationship between intentionand act could further be elaborated by the following eamples*

I. A man makes an earning*+. 1or the satisfaction of his selfish urges.

4. 1or personal consumption and demonstration effects.

8. 1or complying with the divine command to earn for the sake ofsurvival and spending on noble causes.

In all above cases the act is the same but the intention3object is different.

II. A man may grow and sell grapes to the consumer or to the manufacturerof wine.

III. A fanner may grow poppy for sale of seeds or to prepare opium or drugs.In all these cases it is the intention that determines the legality or illegalityof the act or an individual.

!he same is also true in the case of public policies. Inscription of sacred words

on coins may intend to symboli7e a distinctive feature or the inscription may bedesecration of sacred words. !he former may be acceptable but the latter wouldbe treated to be offensive.

In short it is the intention of the government in carrying out an act or in makingpolicy that matters.

!he relationship between an act and intention could take the following forms*

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In case a government issues a license to set up an industry% or start a trade orimport some merchandise it will not be lawful to sell the license because theobject of the license was the authori7ation to set up an industry or trade orpurchase of goods but not to make the license itself an article of trade.

/ikewise if the banks declare their policy of financing their clients on non(interestbases it would be necessary to do so and not merely continue the same practiceand seeking to rationali7e it in Islamic terms by changing the relevantnomenclature such as calling it "buy(back" or "mark(up".

It will not be permissible for the banks to practice Shirka and #lidaraba in such away as to ensure a fied rate of return for the banks while the liability of bearingloss or an uncertain amount of remaining profit is transferred to the workingpartner.

!o take another case% if the government allots plots of land to individuals with the

object of providing accommodation for themselves the allottee will be al+olatingthe implicit terms of the agreement by converting it into a commercial or industrialsite or by treating it as merchandise.

In case the government allots agricultural land to a farmer for the purpose ofcultivation% the land will have to be used for the purpose for which it was allotted.!his allotment will not confer absolute right authori7ing the allottee to claim theroyalty of sub(soil wealth if it has been found on eploration% nor will he beallowed to convert it into a forest or a commercial or residential area becausethese objectives are not covered under the terms of allotment.. Authori7ing thepossession and use Ewould not be stretched to imply a use which the owner does

not intend to allow. /eaving land unused deprives the allottee his right over land.

(2) Doubt and Certainty:

!he basic rule that resolves the conflict between doubt and certainty is containedin the principle*

" belief amounting to conviction cannot be caused to disappear by a doubt"!

!he rule is based on a uranic verses* "#ost of them follow naught butconjecture. Assuredly% conjecture can by no means take the place of truth"&+


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the face of valid ablution &wudu. !he rule thus discards the effect of doubt thatdisturbs the original position. !his provides guidance where discretion orpersonal judgment and subjective evidence are relied upon? the rule is of greatsignificance in the event of controversy on rights and obligations of contendingparties in the absence of a proof on either side. !he benefit of doubt arising out

of a controversial position can never go to a person on whom the onus of prooflies? thus the position of an indebted person even after his death will not beaffected by doubt as to a probable discharge of debt.

Similarly a claim as to the discharge of a debt will not be rejected on the basis ofpresumption to the contrary. A contract between two parties will be treated asbinding even though there may be reasons to doubt its 1ait $u jour. !he rule% ifread with its following subrules% provides a broader canvas of its application.

a# "s to incorporeal matters-that do not prove themselves, the basic principlepresumption# is that they do not e$ist" : so that if between the active partner and

the financier there be a dispute as to profit, the word of the active partner will beta%en, and the financier may lead evidence to prove the actual profit!"

In case a firm declares a particular amount of income during the year this willhave to be accepted by the income ta authorities in the absence of evidence to

the contrary. !hus doubts of the assesses statement cannot be unilaterally orarbitrarily sustained unless the income statement filed by the assesses is provedto be containing discrepancies. )usiness partners whether individual or bankswill also be required to accept it for purpose of sharing the profit. !he rejection ofthis declaration would require convincing proof.

In the case of a dispute over defective merchandise the above sub(rule requirespresumption of defect occurrence after sale unless the buyer could prove priorpresence thereof.

Similarly% a partner has no right to assume a minimum rate of profit earned by his

business partner and claim his share in that profit as different from the amountstated to have been actually earned by the partner. !he sub(rule provides that incase the working partner declares a certain amount of profit no more will bepresumed unless the contrary is proved to be a fact.

b# The above sub-rule is further strengthened by another sub-rule that "noreliance should be made# on mere imagination"

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c# nother rule is that of 'freedom from obligation : so that if one destroys the

property of another, and they differ as to the e$tent of damage, the word of theperson destroying may be ta%en, but the owner of the property may bringevidence to prove the e$cess!

!hus in case of loss in business a partner cannot allege willful neglect and

require the latter to indemnify him for the loss. 2nless he proves the contrary.1ailing this proof the partner will not be personally made liable to the loss or toindemnify the other partner. Any doubt affecting his position of freedom fromliability will be untenable. ;o arbitrary judgment of the contender would beacceptable

(3) liminatin! Detriment:

"&o wrong, no wrong doing"

!his most important rule of the Sharia is based on a 5adith with similar wording.!his guiding rule% read with its sub(rule% "wrong is to be undone".

provides a guideline to regulate the entire economic andfinancial system in such a way that prohibits harm imposition and discouragesretaliation. !his basic rule is treated as a pillar of Islamic law. !he rule forms the

basis of the laws of option% inhibition% return of defective merchandise%preemption% requital% 5udud% compensation and indemnity% etc.&"' !his alsoallows individuals to act unilaterally to protect themselves or others from harm. Itis therefore% necessary that an Islamic state should legislate and manage in sucha way that would plug the sources of causing harm or damage. It is on this basisthat the government has a right to blacklist those traders who indulge in illegaland anti(social activities such as smuggling and adulteration.

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It can also take action against those influential persons who provide support orgive protection to unlawful practices or to miscreants.

It is on this basis that a landlord is not allowed to eject the tenant from thecropped land even on the epiry of the period of the contract of tenancy so that

the cultivator is protected from the loss of his crop. !he landlord is bound toetend the period of tenancy against payment of standard rent till the crop sownby the tenant is harvested.

In case the buyer of perishable goods absents himself without taking possessionof the purchased goods the seller% in order to protect himself and the buyer fromloss% has a right to unilaterally revoke the contract of sale and sell the goods tosome other party lest the commodity should perish.

!he application of the rule has the following prerequisites*

"et the ancient rest on its age"!

!hus it is not permissible to close an age(old thoroughfare or to prevent thelivestock from gra7ing in jungle or public pasture which has been in use since along time. !hese rights have to be guaranteed unless their eercise is harmful togeneral interest. !his is so because of the operation of another rule that

" wrong is a wrong even though it be ancient"!

!hus if an age(old canal is causing water logging and salinity? it should not beallowed(to flow simply on account of previously held rights.

If a well has become dangerous to the neighboring population it will be leveled upeven if it is very old. !he government may ban cycle rickshaws in case it is foundto seriously impair the health of the rickshaw(pullers or in case it has become anuisance to traffic. !he government may also ban fishing on boats in high season account of high risk in case motor(operated boats are available. It can alsoorder for shifting age(old noious workshops and factories from congested areas.!hus ancientness would not be an ecuse to continue a thing that has becomeha7ardous.

"(nlawful things are to be prevented irrespective of benefit"!

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!here may be situations in which an act might' have certain benefits while it

produces corruption and inequity. In such a case the Sharia would ban that actdespite the benefits that it might apparently yield.

!rading in unlawful items and earning with unlawful ways might provideemployment to a large number of persons and bring substantial revenues to thegovernment. ;onetheless the unlawful items in trading must be eliminated sincethe removal of corruption has priority over acquisition of benefits ( economic%social or otherwise.

Bambling or wager might be an effective source of collecting funds forphilanthropic objectives? nevertheless% they have to be avoided since the

acquisition of benefits is less important from the viewpoint of the Sharia than theavoidance of corruption.

!here may be situations in which a trade% technique or a policy is not unlawful butinvolves both benefit and harm? such situations are governed by the followingsubsidiary rules*

a# ")njury is to be resisted to the e$tend possible"

!his rule provides us with a guideline to adjust our policies in those situationswhich% although lawful% are fraught with risk and harm.

Automation would% in the short run% lead to unemployment. Industriali7ation maylead to pollution of atmosphere and overcrowding. ublic ependiture oneconomic development may have an inflationary effect.

!hese risks or damages would not suggest that the efforts towards economicdevelopment should be discontinued. 6hat the rule amounts to is that such effort

should be continued with a serious effort to minimi7e the adverse effects as faras possible. !he following further rules present the practical guidelines*

b# " wrong is not avoided by another of the same %ind"!

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!he law of sustenance binds a person to provide to kinsmen if they are struck byhunger and want. )ut enforcing this requirement on% a pauper who possesses asingle meal would merely transfer the harm from one person to another. !his isrepelling harm with a similar harm and is not recommended.

In case a buyer gets a faulty article he is given the option to return the goods. )utif the purchased article has developed similar fault while in possession of thepurchaser he will lose his option to return the goods because% in order to protecthimself from harm% he will also be harming the seller. !his would amount torepelling a harm by causing a similar harm.

!he rule also lays down an important policy criterion for the government.

It is not lawful for any government to rob a person or a group in order to providebenefit to some other person or a group. !hus it may not provide employment tosome by denying it to others. /ikewise it may not irrigate some farms by drying

up similar other farms.

In short% it is not allowed to use public propertyF for the benefit of some at thecost of others' benefit.

c# " greater injury may be molded enduring# a lesser injury"!

!he principle is that one may not ordinarily compel a well(to(do person in order todistribute his income among the have(nots. )ut in situations where relatives areneedy the government has a right to compel him under the law of sustenance tobear their epenses% as well% because the harm that is caused by the poverty ofthe poor relative is more serious than the harm caused by the compulsorydistribution of a portion of well(to(do's wealth among his near relatives.

Similarly% the government may compel a resourceful debtor to redeem the debton stipulated time.

!he rule also provides some important choices in order to endure a minor harm

to counteract a major harm. 1or eample% in case a customer loses his coin in aslot% his coin may be allowed to go waste rather than to dismantle the machinewhich has much greater value than the coin. )ut in case a very epensive pieceof jewellery is lost in a less epensive washing machine of a laundry its recovery%then% requires damage to the machine? the same will be effected to recover thepiece of jewellery that is more epensive than the machine."

In all such cases where the choice is between two harmful alternatives the onefraught with less harm may be chosen.

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&d !he rule in the case of conflict between a particular harm and a general harmis that

"To avoid public injury, a private injury may be suffered"!

!he Sharia is inclined to allow free market operation and% under normalconditions% is disinclined to price(regulation. )ut in case traders manipulate themarket and reap eorbitant profits in a manner that the interest of the consumers%i.e.% the general public% is seriously jeopardi7ed the government action is justifiedin regulating prices or profits to protect the interests of the consumers. !his is sobecause protecting public interests is more important than securing traders'interests. )y doing so% the government will be preventing the general harm by

tolerating a particular harm.

It is this rule of lesser evil that guides a choice among alternative uses ofeconomic resources. !he question of theory needs to be decided by competenteperts who should be guided by objective rather than subjective factors in their

judgment.

It is this rule which guides inquiry into population planning% nationali7ation% pricecontrol and rationing% ceiling on using land for farming% interlocking of directors ofbusiness fines and a large number of similar economic issues and policies.

In addition% there is another rule which contains the same spirit but is laid down indifferent words. It reads as "The lesser of two evils is to be chosen"

!hus fiscal and monetary restrictions on incomes and borrowing are undesirable%but inflationary pressure caused by monetary epansion is all the moreundesirable.

Crdinarily% it is not justifiable for the government to compel someone to sell% but itis all the more unjustifiable for the seller to hoard food grain.

rice controls are generally undesirable but eploitation of the general public bymaking ecessive profits on necessities like bread% milk% and medicines is muchmore undesirable.

In the rophet's &peace be upon him time middlemen used to purchase articlesfrom suppliers before they reach the towns(market. !his had adversely

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influenced free market operation and proved to be detrimental to the interest ofbonafide sellers and consumers. 6ith a view to protecting the interest of bothgroups the holy rophet &peace be upon him is reported to have disallowed themiddlemen to bargain with visiting village suppliers before they reached themarket.

!hus the rule of choosing lesser evil gives the government wide powers toimpose restrictions and controls on traders and members of other professions%and to regulate ownership and consumption.

In all the above cases the occurrence of harm is real and calculable. !here maybe harm which has imaginary eistence and has remote probability ofoccurrence. Such is not to be considered as a valid ground of policy choice asthe rule is that there is "no reliance on mere imagination"!

5ence production of grape or barley may not be banned simply on thepresumption that it may lead traders to manufacture wine or beer.

!he sale of molasses may not be banned for fear of its misuse by somemanufacturers.

(") The #ule$ of #elaxation:!he uranic policy is*

Allah desireth for you ease* 5e desireth not hardship for you. &4*+=>

6e hath chosen you and hath not laid upon you in religion any hardship. &44*@=

!he rophet &peace be on him is also reported to have insisted on the samepoint on a number of occasions. &88 !his is one of the most misinterpreted andmost misused rules for want of clarification. 5ardship for physical persons as

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hinted in the uran has been defined by jurists as a situation in which actingupon an injunction of the Sharia causes loss of life or limb or leads one toperformance of a prohibited act. Islam insists that one should earn by lawfulmeans alone and should only consume what is permissible. !hese restrictionsmay sometime lead a person to die of starvation for want of a lawful earning or

availability of a permissible esculent. 6hen a person is placed in such direcircumstances the Islamic law permits the use of an unlawful item.

#uslims are prohibited from shedding the blood of their brethren. !hus if anaggressor on dar(al(Islam deploys #uslim soldiers on the front line. Islamic lawconsiders it permissible to disregard the presence of #uslims in the front line ofthe enemy in repelling the attack even though that would entail the killing ofinnocent #uslims which% as a rule% is absolutely prohibited. In both cases theprimary objective of the Sharia is the protection of #uslims and the defence ofdar(al(Islam. !hus the obstacle that confronts the achievement of this primaryobjective will have to be overcome by relaing the two conditions.

!here are cases in which the uran andlor the 5adith have outlined the nature ofhardship which forms the basis3cause of relief. In such cases no other hardship istaken into account for claiming similar or further relief. !here are% however.situations where the uran and the 5adith have not laid down the hardship whichcalls for relief or relaation while acting upon some injunctions. It is here thateperts of high calibre may determine whether this really deserves relief. Animportant point that needs to be emphasi7ed here is that the object of providingrelief in case of a hardship consists of facilitating a more efficient achievement ofthe objective of the Sharta. !his provision of relief is motivated by the spirit ofcompliance rather than escapance.

Similarly% there are situations in which the uran or the 5adith grant a relaationin principle. In such cases the relief is restricted to those laid down in the tet andonly to that etent% but no further.

It is prohibited to sell the fruits on the tree before they come to maturity.

It is also prohibited to sell food grain for the same quantity and specie of foodgrain for delivery in future. #oreover% the quantity sold should be determinableand not conjectural.&8>' !he 5adith relaes this principle to the etent of >wasqs in the case of date and grape for those cultivators who need them but they

have to wait long for their own produce. !hose cultivators are allowed to sellconjecturally a quantity of their epected fresh produce for a quantity of dryproduce available promptly.

!he relaation so granted cannot be further epanded in items quantity or insituation. Similarly a contract to sell a commodity which one does not possess atthe time of making the sale contract is not lawful. )ay' Salam which technicallymeans prompt payment for a commodity that the seller does not possess ispermissible in the case of producers who need finance for inputs. If finance is not

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forthcoming at the time of sowing% production will cease which will be harmful forthe entire community. !o ensure productive activity is not hampered the cultivatoris allowed to sell his epected produce against advance payment. In thisparticular case% however% the rophet &peace be upon him made a relaation inthe law of sale of goods. !hus the relaation in the principle of "sale before

possession" will remain confined to )ay' Salam only and cannot be used in othersale transactions.

In contracts of hire and commission one party agrees to pay for a benefit &hire ora part of the proceeds &commission which does not eist at the time of makingthe contract. In principle this absence of the consideration should have nullifiedthe contract but it was the rule of universal need that such contracts werepermitted.

6hile elaborating this application% early scholars have cited a number ofeamples applicable to economic life*

5ardship may be faced because of compulsion% distress and universal afflictionumum bahva#% physical handicap% ignorance% forgetfulness% sickness and

journey. !he relaations that are granted in many of these situations take avariety of forms% for eample*

a. ,elaation &Suqut. !he uran prescribes eight different heads ofependiture of Dakat proceeds &G*


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b. $ecrease &tangis. !he uran ordains #uslims to fulfill their promises 3contracts &>*+? +@*89? 48*=. !his does not accept nullification even thoughthe conditions laid down become impracticable or injurious to either orboth the parties. It is i view of this hardship that a large number ofcommercial contracts have been made revokable &aqd a% hayr la7im.!he

rate of levy of Sadaqa on land produce is +.

c. Advancing &taqdim. Sadaqa or Dakat is due on the completion of a fullyear or on harvest. In case the government is in desperate need for Dakatfunds it may request the payer to pay the same in advance of its becomingdue. Advance payment of price in the case of bay salam and bay istisnaare also eamples with the object of meeting the need of the cultivator orcraftsman.

d. ostponement &!a'khir. A debtor is morally bound to settle his debt on orbefore the stipulated date. $efault in timely discharge is not only sinful butalso eposes the debtor to legal action. )ut there may be situations inwhich he is unable to pay the loan. !his will require for deferment to afuture date lest he should commit a sin by refusing to pay the loan.

e. ermission &tarkhis. !he uran prohibits consumption of wine% pork% andcarrion. )ut in case water is not available one is allowed to use wine forswallowing down if he fears death from choke(throat. !he reason isprotection of one's life from sure death.

Similarly a man who is dying of starvation for want of permissible food ispermitted to use carrion or pork in a quantity required just to save his life.

It should be noted that permission to act on this basis is restricted by time andetent in the sense that this permission is purely temporary and the quantityconsumed or act rendered should be the barest minimum sufficient to save onefrom death or irreparable damage. !his qualification is applicable in the case ofpermission for all unlawful items and acts. !he restriction is eplained by theuran in the following words*

"ut he who is driven by necessity, neither craving nor transgressing, it is no sinfor him! o+ llah is orgiving, erciful! .:/01#"

It will be found from the above discussion that all these relaations are amenableto the situation of necessity. )ut any necessity cannot qualify for relaation. !hisrequires defining the Sharia concept of necessity which plays a very importantrole in elaborating the main rule. !he concept not only forms the basis of manysubsidiary rules but also lays down the limitations within which the main rule hasto operate. !he rule "necessities &ad(darurar justify that which may be unlawful"is the most important principle that provides us with guideline to bypass the

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impasse in practising upon the principles of the Sharia. !he scholars% whiledefining necessity% have distinguished between darura &compulsive necessity%and haja &need. 1or them darura is an indispensable necessity which% if not met%may cause severe hardship resulting in loss of life (( known or suspected. 5ajaon the other hand% is a need which when unsatisfied does not cause hardship. It

affects convenience and efficient performance of an act.

In addition to the compulsive character of necessity jurists have laid down certainconditions which should be met before relaation is sought. !hese conditionsinclude*

i. !he necessity should be in esse but not speculative or imaginative.ii. ;o lawful alternative should be available to the suffering person than the

one which calls for relaation.

iii. !he solution should not infringe the inviolable rights of the people leading

to homicide% apostasy% and usurpation of property &ghasb or indulgence inunlawful se.

iv. !here should be a very strong justification such as the protection of life orlimb% for relaation to the etent of consuming an unlawful thing orperforming an unlawful act. !he relaation is made only to the barestetent that may avert the threat to life or limb.

v. In view of eperts it should be a genuine solution and the only oneavailable. 1or eample% in the case of medical treatment% only an epertphysician is competent to pronounce whether liquor alone is the available

remedy for disease and nothing else would be effective.

vi. In addition to the above% a very important condition of permitting an actunder constraint or compulsion is that "necessity does not destroy the rightof others* for eample one who is compelled to eat the food of another isstill liable to pay the cost".

A government may compulsorily take over the property of other persons if it isnecessary for achievement of important social and national objectives but it willbe required to pay fair compensation.

It is under the above conditions that relaation is allowed in the main principle. Incase% however% the hardship is not so etreme as to endanger life or limb it will

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no longer be termed darura. It may be termed as haja which% if faced casually orby individuals% will not justify any relaation. 5owever% if this haja has becomegeneral or universal and the entire society or a group of the society is confrontedwith hardship% this will call for relaation. It is because of this consideration thatthe rophet &peace be upon him has allowed such as hire% bay salam and

istisna even though they run counter to the rule of the sale of non eistentcommodity. !he object of relaation is to overcome the impediments in thesmooth economic functioning of the society. !hus the relaations that can bemade for the society on the ground of general need cannot be allowed in thecase of individual needs. As an eample the general principle is that a person isallowed to use only what he owns. In case the entire society is made to rigidlyfollow this principle economic activities would be confined to those actuated bypurely selfish motives and would become altogether bereft of benevolence andmutual cooperation. ;o entrepreneur would like to offer his skill to the saver&mudaraba contract. ;o businessman would join the other to carry on jointbusiness &shirka contract% nobody would borrow for his personal and business

needs% nobody would sell on deferred delivery basis &bay salam or take anadvance for manufacturing an article &istisna or rendering a service &ujra. Anindividual can do without all such contracts but if the entire society is made torefrain from such contracts it will drastically curtail production% consumption andinvestment and ultimately may ruin the economic structure of the Islamic stateand might undermine the economic well(being of the people. !he Sharia% in orderto remove such impediments% has legali7ed a number of contracts which arelikely to epand the scope of economic activity and promote economiccooperation. !hus in certain cases% what is an ordinary need% halo% of theindividuals becomes an indispensable need% darura% of the society.

Some scholars have classified the degrees of permission &tarkhis taking intoaccount the urgency of the situation and the benefit &maslaha which the Shariaintends to achieve. According to them on some occasions the permission to doan unlawful act might become obligatory while at some other time it might only berecommended. 6hile in some other situations it would simply be treated asoptional. !hese three degrees can be made equally applicable to the individualacts as well as to government policies. Applying this classification to individuals itbecomes obligatory if human life is at stake. 1or eample% if a person is dying ofchoke(throat but has nothing to swallow ecept with wine% he is obligated to use itand save his life.

!he eample of a recommended permission is transfer of the liability of debt&hawala to a non(borrower. Cptional permission lies in allowing the patient ofscabies to wear silken attire which otherwise is prohibited for men.

A trustee of an orphan's or an insane's property% compelled by necessity% has theoption to utili7e the property to the etent of his service to the owner.

,elaation in the case of society or government becomes obligatory when thecommunity feels that it would suffer an irreparable loss. ayment of interest is not

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permissible for any #uslim including the Islamic State. )ut in case it is unable tomake prompt payment for military hardware to prepare itself for the defense ofdar(al(Islam it must make credit purchase even though the credit is available onlyat interest.

!he same rule will apply in case the country is witnessing a famine and isthreatened by the loss of a large number of lives. Crdinarily% the government isnot allowed to compel traders to sell their goods or fi their prices. 5owever% inthe event of scarcity of bare necessities% their hoarding and maldistribution

justifies the government intervention to control supply and price of thecommodities concerned.

,elaation becomes recommended when the original injunction implies someprocedural difficulties. !he element of gharar makes a contract3transaction void.)ut this does affect the enforceability of a unilateral offer of gratuitous payment. Itwould be advisable for government to announce the award of suitable pri7es on

good performance by its citi7ens.

As a general rule a trustee is not liable for the loss of trust property. )ut in thecase of general misbehavior of the trustee it may be recommended to make himliable for the loss of property inflicted on account of trustee's negligence.

;ormally the government has no right to eact money from the people eventhough as a compulsory loan. )ut in order to relieve inflationary pressure andrestrict the epansion of money it will be desirable to bind the wealthy individualsand financial institutions to compulsorily subscribe to contractionary loans3bondsfloated by the government.

6ages are to be determined by contracts freely made between the concernedparties. )ut in case the government finds that one of the two contracting partiesis% due to superior resources or bargaining power% inclined to eploit the otherparty by dictating unfair terms% it is desirable for it to fi minimum 3 normal wages.

Similarly% there may be situations in which it would be advisable for thegovernment to free7e wages and salaries. !here is some situation in whichrelaation is simply optional but not compulsory or desirable. It would be optionalfor the government% for instance% to fi prices of certain commodities and rents ofsome categories of premises at some places and to impose credit ceilings for

financial institutions.

It may also fi the crops that should be grown in some regions and may put a banon the manufacture of certain items provided that it finds those actions to be inthe interest of some particular class or community rather than .the community asa whole.

It should be noted carefully that there is a basic difference between the etent ofrelaation on account of darura and on account of haja. Similarly% there is a

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difference between relaation for individuals and for society. 5ardship falling inthe category of darura facing individuals involves loss of life or limb% and hencerightly calls for relaation in basic principles of the uran or Sunna. Cn the otherhand% hardship faced by society which is not of the class of darura but is treatedas haja is less severe and only affects smooth and efficient performance of social

institutions. It does not claim relaation in subsidiary rules that are based onanalogical reasoning of the fuqaha. !he former relaation is purely temporaryand ends with relief in hardship. !he later relaation continues for as long as it isfound beneficial to the society.

6hile the rule "necessities justify that which may be unlawful"

broadens the scope of activity there are counter(rules to prevent the misuse ofthe permissibility and relaation. Cne such counter(rule% as laid down by some

jurists% reads as "permission when e$ceeds will be narrowed down"!

!his rule% though not discussed generally% has in fact been in practice since theearliest days of Islam and provides us with significant policy guidelines.

According to most of the fuqaha an indebted person is eempt from Dakat on hisnon apparent wealth &mal batin to the etent of his liability of debt. resently thiseemption could be misused by a large number of wealthy businessmen andindustrialists. In akistan the use of the above quoted counter(rule led the Dakatand 2shr ordinance +G=< to discriminate between different categories of debtand narrowed down the legal eemption.

!he holy rophet &peace be upon him permitted betting on horses with theobject of encouraging horse rearing which was the most important riding animalduring 0ihad. As horses are of lesser importance in modem warfare% the entire

sport of racing involving stakes needs to be reviewed in the light of the counter(rule.

Indiscriminate sale of birth control devices leading to their misuse alsorecommends for application of the counter(rule.

!he use of platinum jewellery by men which is much more epensive than theprohibited gold jewellery and of much more epensive dress than silken which isnot permitted for men need to be reviewed on the same ground.

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Similar is the case of practicing a large number of financing techniques adoptedby contemporary interest(free banks. !echniques of joint trading could beepanded into a number of interest(free modes of financing by banks. )ut in casethese modes are made into a device for ensuring a fied return% it will benecessary to impose restrictions to prevent their misuse.

!he holy rophet &peace be upon him has allowed the right of tilling theunclaimed barren land to the one who reclaims it. !he point to see is if thegeneral license to occupy in this way would not be misused by the resourcefulpersons.

!he situations where the relaations of the Sharia seem to have been surpassedto an embarrassing etent are man and varied and need to be carefullyeamined by the jurists. Should the customary withdrawal of a daughter from herright to inheritance in landed property be taken on its face valueJ

Should an orphan be deprived of all rights in the inheritance of a grand(fatherJ

Should mineral wealth hidden deep beneath the land be treated as a right of theperson who possesses that land for cultivationJ

Should state land be unconditionally leased out to individuals for very longperiodsJ

Should all the revocable contracts and irrevocable ones be retained as they aretreated in fiqh literatureJ

Should "spoils of war" now left by vanquished enemy in the battle field bedistributed among fightersJ

!hese and such issues need to be resolved in the light of the rule "permissionwhen eceeds will be narrowed down".

!he second counter(rule to relaation lies in the maim. "!he etent ofnecessities limits action there under".

!his maim aims at restricting the scope of relaation only to the etent andnature of necessity. Cne is not allowed to etend this relaation to coversituations that are not really necessary. In consumption% for eample% as statedabove a person may be allowed to save his life by eating an unclean stuff% butthis permission is restricted to the etent of eating a quantity that may save himfrom death but not eating to his fill.

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:verybody has a right to dispose of his property in any lawful manner hechooses. As a general principle he cannot be deprived of this right. )ut under therule of necessity government may free7e or sei7e the properties of a defaulterwho fails to discharge government claims or personal or institutional debts% inorder to adjust the claims with the defaulter's fro7en accounts or sei7ed

properties. )ut the maim that "the etent of necessities limits action there under"binds a government to attach only as much property as is sufficient to adjust theclaims% not more than that. It will be offensive to deprive the defaulter of all hisfied and transportable property or to stop him from eercising his normalbusiness operations that eceed the etent of claims.

!he maim is equally applicable to individuals as to society and government.

Individuals may% sometimes% be compelled to any on their living through a jobthat is not religiously clean. 6hen they get an opportunity to join a cleanprofession it will not remain permissible for them to continue their unclean job.

!here was a time when% in some regions scrupulous lenders were not willing toadvance loans to traders unless they had an ae to grind. It was on account ofthis ecuse that" 2lama" in those regions legali7ed bay' bi'l wafa' &buy(backarrangement so that the traders had not to suffer due to lack of funds. !hesituation has now changed. !he largest and the most organi7ed source offinance are banks which mobili7e and allocate most of national savings. -reditpolicy is controlled and monitored by central bank keeping in view the overall

public interest. !his has discarded the refusal of scrupulous money lender for notfinancing the needy producer or trader. !he central bank may impose controls toensure supply of funds to all the priority sectors or neglected sectors on termsand conditions that are in consonance with the Islamic principles of Kmance% onthe one hand% and attractive to both the parties on the other. !hus the legality ofbay 'bi'l(wafa will no longer remain permissible.

Cn higher level a government has the authority to levy ta for meeting budgetaryrequirements for public welfare projects only when it is short of public resources.In cases such as compensation for earthquake victims% the justification wouldcease after rehabilitation work is completed. Special purpose taes thus need to

be spent eclusively for those purposes. Any infringement would amount to abreach of trust. As soon as the purpose is achieved% the permissibility of the tawould cease.

(%) &ive and Ta'e:

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!he rule that governs giving and taking is governed by the principle* "2hat isharam to ta%e is haram to give"!

As a corollary of the above% another rule is that "2hat is haram to do is haram todemand"!

!he rule along with its corollary is relevant not only for financial transactions like

taking of interest% and illegal gratifications etc.% but also for non(financialtransactions like adopting professions that are rejected in the Sharia. !he importof these rules is clear for individuals but requires some elaboration in regard toactions and policies of the government. It may be argued that the injunctions ofthe Sharia are addressed to individuals and have no effect on corporate bodiesand government. !hus what is obligatory for the #uslim individuals is not bindingon #uslim governments. 1or eample% #uslims are required to offer prayers% payDakat and perform hajj but the government as such is not supposed to do norcan* it do all that. Similarly it is the individuals who are required to refrain fromengaging in interest but not the government or other legal persons. )ut theargument can be rejected on ground of the following uranic verses*

!hose who% if 6e give them power in the land. :stablish worship and pay Dakatand enjoin virtue &maruj and forbid iniquity &munkar &44*9+. All hath promisedsuch of you as believe and do good works that 5e will surely make them tosucceed &the present rulers in the earth even as 5e caused those who werebefore them to succeed &others? and that 5e will surely establish for them theirreligion which 5e hath approved for them% and will give them% in echange safetyafter fear. !hey serve #e. !hey ascribe nothing as partner unto #e. !hose whodisbelieve henceforth% they are the miscreants. :stablish worship and pay Dakatand obey the messenger that haply ye may find mercy &49*>>% >.

!hese verses not only point out the obligatory 'functions of an Islamic state butalso emphasi7e the importance of making religious norms and values prevail inthe human life. An Islamic government% for obvious reasons% may not be able toperform the rites of worship. It is% however% under the obligation to establishinstitutions that are conducive to their performance by all those #uslims who arecapable of so' doing. #oreover% its duty is to ensure that virtue% ma'ruf is enjoinedand vice% munkar is being forbidden &. 44*9+. 5ence the government. may notlegali7e for itself an act which it prevents under its jurisdiction. !his is what hasbeen laid down in the above quoted rules. !he uran and the 5adith disapprove

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incomes arising out of interest% illegal gratification% or obscene professions% andof all those acts that are prohibited.&S8 As a consequence% it is obligatory for theIslamic state to ban the sources of such incomes. In case the government bansthese incomes and professions for individuals% but eempts itself from doing so%the ultimate benefit and effect of the same will directly and indirectly pass on to

those individuals because the government epends its incomes on their welfare.!his will be in addition to creating the undesirable moral% spiritual and socialeffects that such practices are likely to bring about.

It needs to be pointed out that the above mentioned rules lay down the practicalscope of the unlawful items and acts. In case of lawful acts% however% adistinction has to be made between the rights and powers of the government&Imam and those of individuals. It is the prerogative of the Islamic governmentonly to levy and collect taes but not of individuals. !he &Imam alone candeclare 0ihad against an enemy but not an individual. 5udud can be enforcedonly by an Islamic government% not by individuals.

() The #ule$ bout *enefit +er$u$ ,iability:

!he relationship between the right to enjoy benefit from a property and theliability to incur loss due to proprietorship is governed by a number of rules thatcarry great significance in transactions of commercial nature. In cases wherecommercial nature is not involved the plain rule is that "6hat is permissible in lawcannot be a cause for liability".

!hus if a person digs a well in his farm and somebody's animal falls in it and isdrowned the owner of the well will not be liable to compensate for the lossbecause he is allowed to get a well dug at his farm.

Similarly it is presumed an Islamic government provides the best availabletransport facility to its citi7ens% to construct dams for irrigation and electricity% todevalue or revalue its currency in the national interest% and to carry ondevelopment projects for the benefit of its people. ;ow in case somebody is runover by a train due to his own fault or is carried in an air(crash% or is carried awayalong with his property by floods caused by breaches in the dam% the governmentwill not be legally liable to compensate for the loss.

If a government ependiture on development creates inflationary pressures thegovernment would not be bound to compensate the buyers for a fall in value oftheir money caused by this action.

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Another rule dealing with non(commercial transactions is governed by therophet's &peace be upon him saying that*

"There is no indemnity on usufructuary who does not breach the terms# nor ondepositary who does not breach the terms#"!

/iability to indemnify the aggrieved party arises in a large number of non(commercial transactions like usurpation% slander% crime% found property% agency%

marriage% sustenance% etc.% under conditions of infringement of one's rights an9negligence of duties and responsibilities. In cases% however% where commercialconsiderations are involved the rule provides that "$amage and benefit gotogether". !hat is to say that a person who obtains the benefit of a thing% takesupon himself also the loss from it.

!his general rule is based on the rophet's &peace be upon him saying* "Al(kharaj bi'd(daman" &",evenue goes with liability".

Another legal maim that also has the same bearing is*

"The blessings of a thing are in proportion to the evils thereof and vice versa"

!hus when the thing used is destroyed while in the possession of the usercompensation for use will be included in relation to its value? for eample% if thebuyer of an animal returns it because of a defect% after using it for a period% he isnot liable to pay for the use of the animal% since if it had died before being

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returned% it would have died as his property. !hese rules imply that if themerchandise not yet possessed by the buyer is lost% it is the seller but not thebuyer who would have to bear the loss because the former enjoys possession.

Cr% in case the price of purchased goods still in possession of the seller

increases% the increase will benefit the one who is deemed to be liable to sufferfrom an adverse fluctuation in price of the goods.

-ontrarily% in a contract of Shirka a condition under which one party is entitled toa share in profit only while the other party is made liable to the entire loss alongwith his share in profit would contradict the above rule.

Similarly% renting out one's house on the condition that the tenant would be liableto the value of the house if the same is damaged due to flood or earthquake isalso a contravention of the rule because the owner who is earning its rent shouldalso bear the loss.

!he depositary% who is liable to return the deposit is entitled to take away theprofit of the deposit if the same has been invested% even though the permission&epress or implicit has been given by the depositor.

)ut if the depositor lays down the condition of transferring profits to him he willhave to bear the loss% when incurred% on these investments.

!he depositor is liable to bear the ependiture of safe(keeping because it is hewho benefits from this safety. !hese rules are to be made applicable to allsituations where an owner earns benefit from the property which he has

transferred or intends to transfer fully or partially to others under a contract ofsale% hire% lease% tenancy% agency% etc? or joins with another person with a view toearning through partnership &Shirka or #udaraba or share(cropping u7araa.!he rule guides us to decide whether all the partners in a partnership businesswill be similarly entitled to a return and liable to losses or a discrimination may bemade between different partners on the basis of the time or amount of theirdeposits in assigning their shares in profit and lossJ -an some share(holders beissued debentures or preference shares ensuring a fied return while someothers only ordinary shares whose owners are liable to bear the entire lossJ -anan underwriter be treated differently in sharing the profit and loss in businessJ6hich of the parties to a contract of leasing or hire purchase will be responsible

for bearing the epenses of maintenance% repair and insuranceJ -an any set ofterms and conditions of rent% hire or lease between a lessor and lessee be validlysettledJ !o what etent a guarantee may be claimed from a partner% and againstwhich kind of lossesJ !he answers to these and similar questions should be

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(-) Public .elfare +/S00+/S The Di$cretion f The&overnment

,espect for ownership of property is a distinctive feature of the Islamic economicsystem. !he objective of the Sharia seeks% interalia% to protect the earning andproperty &mal of people. !his objective can be achieved only when the legalsystem prevailing in a society prevents violation of the properties of people. !heholy rophet &peace be upon him has emphasi7ed this point on a number ofoccasions. 5e is reported to have said*

"It is not permissible for a man to take away the stick of his brother without thelatter's will"

"!he property of a #uslim person is not lawful &for anyone ecept with his freewill."

!he spirit implicit in such traditions led to the formulation of the following rules inregard to the use of property by others. ";o one may dispose of the property ofanother% without the latter's permission.

"n order by one person to dispose of Tasarruf# the property of another is nulland void"

!asarruf &use or disposal may be under or without a contract. -ontractualtasarruf would imply that a person makes an agreement or authori7es someoneto sell% gift% mortgage% hire% deposit or lend another's property without the owner'sconsent. !asarruf or use without contract implies disposing of somebody'sproperty without his permission. An agreement made to this effect is normallydeemed to be legally ineffective while he who uses it without permission is liable

to indemnify the owner. Absence of a license% or permission to make such actrenders it to be null and void. !his right% however% does not deny the right oflawful claimants% where this provision is incorporated in the following rule*

"&o one may ta%e the property of another", e$cept for a lawful reason"!

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!he clause ecept for a lawful apparent reason makes this maim applicable notonly to authori7ation made by the owner but also to that laid down by law orreason. !he authori7ation provided by law lies in levy or penalties by governmentwhich justifies the latter's claim on the owner's property or a part of it. !his doesnot require the owner's willful consent.

,eason sometime allows a .non(owner to dispose of the property of the owner tosave him from loss or damage. !he manager of a poultry farm% for instance% whois not authori7ed to sell the chicken% may dispose of the whole stock for fear ofthe owner's loss% let us say% due to the spread of an epidemic in case it is notpossible to epediously obtain the permission of the owner for one reason or

another within time. 1ire fighters may drench% destroy or dismantle inflammableerections lying in the vicinity of a burning object% without seeking the permissionof the owner.

!he authority of disposal on legal or rational grounds is equally enjoyed by thegovernment under a different rule which reads as follows*

"3ower in respect of the people's property by the owner subject to the followingconditions":

!he ,ule confers wide powers in the government to control or regulate theacquisition and use of a private property by the owner subject to the followingconditions*

+. !he action so taken by the government should aim at achieving publicinterest and general welfare? for the government officials are supposed to

act on behalf of the entire "2mma or achieving public interest throughmaintaining justice% eliminating corruption in society and using all availableresources for the sake of achieving what deems to be in the interest of theummah in the present and the future. !hus the action by the governmentofficials should not be in conflict with these objectives.

4. In case the government thus needs to acquire private property it shouldpay just compensation to the owner because of the rule already discussedabove.

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8. According to some scholars the actions taken to achieve public interestshould enjoy the support of the people.

!he above conditions of the rule require that an Islamic government shouldclearly define the duration of ownership and the rights of disposal.

It should so legislate as to prevent others from misuse of public or privateproperty. !he administrative machinery should be competent to enforce the lawin a just and honest manner. In case the government needs to acquire theproperty owned by some of its citi7ens it should publici7e the contents of theproperty% the purpose of acquiring it and the rate of just compensation that itintends to pay. It should be ensured that the purpose for which the property is tobe acquired enjoys the support of the people who can impartially judge thevalidity or otherwise of the purpose for which the government intends to take oversomebody's property.

() The #ole f Cu$tom nd 4$a!e5 64#7 and 6D

!he 5oly rophet &peace be upon him is reported to have declared*

")f we appoint anybody on a job and pay him his subsistence and he then ta%es

anything in addition to it, this is embe44lement"!

6hat constitutes the level of subsistence is a point that needs to be decided onthe basis of custom and usage. Another 5adith that seems to be more specificthan the above is reported by Abu 2bayd which is conveyed in the followingwords*

"2hosever gets an office in our administration he may- marry if he is unmarried+he may get a house if he does not possess it+ he may have a riding animal if hedoes not own any+ he may %eep a servant if he does not have one! ut ifanybody hoards wealth and rears a floc% of camels with government funds#

llah shall ma%e him rise up as the one who misappropriates or cheats us!"

It will be noticed that the 5adith does not provide for food% clothing% medicalfacility and education. !he probable reasons seem to be that*

i. Salary system as adopted later was not. introduced by the rophet &peacebe upon him. Cfficials were often required to voluntarily perform

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!he condition of non(refundment of earnest money in the event ofrepudiation of a contract or of the non(acceptance of a tender is againstthe spirit of the Sharia.

!he practice of forcing a borrower to work at sub(standard wage by virtue

of his indebtedness is also eploitative and hence prohibited.

arents taking possession of dower money &mahr of the daughter withoutpassing it on to her which is still prevalent at quite a few places is also notacceptable according to the Sharia.

!he practice of paying fied amounts by way of bribe to officials are notpermissible notwithstanding that custom and usage support them.

.! "The custom which is most widely prevalent and operative is to be reliedupon"!

1ood grain that was traded in the early Islamic period was measured interms of mudd and sa'. )ur it is now universally weighed% but notmeasured. !hus all calculations whether for trading or for purposes ofpayment of '2shr or Sadaqa or atonement &kaffara will be made in termsof the prevalent units of weight.

)imetallic standard has now been universally replaced by paper currencyand should be validly subjected to all Sharia injunctions regarding receipt%payments% calculation of Dakah on wealth% repayment of loan% etc.% in thesame manner as when the bimetallic standard was prevalent.

1! "Credence is to be given to that which is publicly and generally operative,and not to what is rare or little seen#!"

It seldom happens that some parents present to their daughters returnablegifts. )ut the regular custom is to provide dowry for good. In case of anydispute on the point of ownership it is the predominant custom that will bemade a precedent.

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Subject to the conditions laid down above the main rule "Custom is a source ofjudicial decisions"shall be made applicable. !hus "what is a matter of commonpractice has the same effect-as an e$press condition"!

In case a person authori7es another to sell something on his behalf withoutlaying down conditions as to sale price and unit of currency% the agent will betreated to be bound by conventional rules of charging a reasonable price andprevalent currency.

An attorney would be epected to rent his principal's house% machinery orworkshop on the terms and conditions customarily prevalent in the market.

An owner can sell the fruits of his trees when they mature but cannot compel thepurchaser to collect them before these are customarily usable.

A contractor is epected to erect the premises of a standard which is customarilyacceptable.

In none of the above cases the detail understood by common usage would needto be mentioned. Another rule supplementing the above lies down* "Custom hasforce to ma%e void a fact"!

It would be pertinent to clarify at this stage that general prevalence anduniversality do not necessarily involve the entire population% in regard to all thecustoms and usages. $ifferent groups may have their customs and usages thatunconcerned people are not supposed to know. 1or eample% merchants mayhave their customs which all of them respect and follow. As a result "/atter ofcommon practice amongst merchants has the same effect as e$press conditionsbetween them "!

!his will not% however% bind non(merchants to follow the custom% nor allow themto make any claim on that ground.

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Bestures% signals and code words in the stock echange commodity echangemay amount to a contract among brokers% but this may not be an effective modeof contract for others.

Sale by auction may have different techniques at different places% and those

techniques might be given the force of law.

It is this rule that allows a government to take into account contemporarystandards to detennine the cost of living and subsistence level% to define the costof production and to lay down eemption limit for taation and fi salaries andwages.

(8) Penalty 7or va$ion:

!he ,ule that L "5e who hastens an event in order to ac6uire a thing before itstime will be punished by being denied that thing"!

provides the government with wide powers to penali7e evasions andcircumventions through legal devices. !hus withdrawals of deposits to evadededuction of Dakat% transfering or gifting of property to the successors to escapeland reforms% cordoning plots of land to qualify for grant of freedom priced land tothe bonafide occupants and all such acts that are aimed at taking undueadvantage of legal provisions and thus defeating the purpose of a law or aninstitution can be set aside by the government provided that the malafide of theperson is proved.

(19) ,imitation:

(1) $ to analo!y

In the forgoing pages a number of instances have been adduced in order to showthe practices and institutions which have been approved on account of necessitywhich otherwise could not be pennissible under the ordinmy rules of the Sharia.!his eplains the legality of mudaraba% mu7araa. bay salam% etc. -ontracts likebay' salam may be adduced by some to support the eisting practices of mark(upor murabaha etc.% in which the sale takes place without possessing the goods

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actually being transferred and without the seller even having the capacity todeliver the goods. !he legal maim that determines the Sharia position of suchcontracts is contained in the rule "2hat is proved to be opposed to 6iyasanalogy# cannot form the basis of further 6iyas!"

In other words if a contract 3 transaction is legali7ed in defiance of the basicprinciples of the Sharia the legality of such transaction 3 contract shall not beadduced by way of analogy in support of a similar other contract. !he contractslike mudaraba% bay' salam etc%. which cannot be otherwise justified on the basisof analogy were allowed by the rophet &peace be upon him. !he legality ofthese transactions is of an eceptional character and hence it may not be cited

as an evidence for supporting any other contracts.

(2) $ to tric'y device (hila)

-oncluding the above discussion it seems relevant to make a hint at thetechnique of adopting a tricky device% hila% to circumvent a prohibition. !he earlyfuqaha' ingeniously devised some techniques in case somebody got in trouble forwant of a legal solution to his problem. Some unscrupulous persons at later timesmisused the technique to tread upon the prohibited path. 6hen the financiers insome cities refuse to etend loans to traders% the fuqaha' devised the techniqueof buy(back &bay' bi'l(wafa' which implied an incomplete sale transaction. !hegoods sold by the trader was treated as a mortgage with the purchaser andreturnable after the price paid by the purchaser was returned to him. !hetransaction of a sale authori7ed the purchaser to benefit from the purchasedgoods which could not be permissible in the case of direct mortgage. In a lawfuldevice% an indirect% and sometimes doubtful technique is adopted to achieve alawful object. )ut if the object itself is unlawful the technique% even though legallypermissible% would be condemned. :ven in the case of lawful device and objectthe point that needs to be remembered is that such devices are resorted to onlyfor individuals in order to get out of an impasse and are confined to a very shortperiod. !hus hila cannot be adopted as bases for the policies of states% the#uslim societies% and social institutions and become a regular modus operandion a permanent basis.

Documents

Economics Sharia Maxims