There has been a dramatic change in the world’s civilizational and economic scenes, due to which the format of financial and commercial deals has also changed drastically. Consequently, the juridical laws framed during the early days of Islam fall short of meeting the Muslim world’s current needs. This calls for a thorough review and updating of the laws and precepts available in our books of jurisprudence and a fresh codification of the economic and fiscal laws of Islam.
The Constant and Variables
The way that a group of modernists would like to recodify the laws, guided by their own whims, is actually not a recodification of the Shari’ah laws, but a daring attempt to distort them wilfully and commit apostasy in the economic domain of our lives. Those who have committed Muslims and would like to follow Islam in all areas of their lives need a set of new rules and regulations in the realms of business and finance. They need this for the sole purpose of following the directions of the Qur’an and Sunnah as they tackle the problems of modern-day business, economics, and finance. It is therefore essential to recodify the economic laws of Islam.
Need to Modernize
Islamic law can provide guidance under changing circumstances at all times and everywhere. While the injunctions of the Qur’an and the Sunnah are irrevocable and everlasting; the laws based on these injunctions, which were codified around twelve centuries ago, can be modified. The principal objective of this legislation is to organize social conduct and the interrelationship of people based on mutual trust and a sense of interdependence by defining the people’s rights and obligations.
It is now up to our religious scholars and legislators to continue drawing upon the guiding principles of the Islamic Shari’ah to frame within their broad perspective new laws, rules, and regulations to meet the demands of the changed situation in a manner that fulfills the basic objective of the Law-Giver.
Modernization of Statutes and By-laws
The Islamic Shari’ah thus offers a comprehensive universal framework according to which fresh legislation can be formed and old ones amended to meet the demands of a particular situation. Religious scholars that are duly qualified are entitled to frame statutes and by-laws, and to explain subsidiary issues within the context of the Shari’ah.
Let us now explain the necessary prerequisites, rules, and regulations for this onerous task of recodification of the economic laws of Islam.
The first essential prerequisite for the recodification and framing of by-laws is a perfect understanding of the Shari’ah and complete grooming in its essence and spirit. This is something that can only be achieved through a comprehensive knowledge of the Qur’an and deep insight into the Sīrah (life record) of the Prophet (Peace Be Upon Him).
The next essential requirement is for an overview of the injunctions pertaining to a particular field in which legislation is required, followed by a careful study of these injunctions to understand the real objectives of the Law-giver and the strategy He would have adopted for reorganizing that particular area within the overall scheme of a Muslim’s life. In the realm of Islamic Law, the external format of injunctions is not as important as their intent and purpose. The real significance of a jurist’s work lies in his ability to focus on the objective of the Law-giver, as well as the wisdom behind a particular law. At times it may happen that acting according to the apparent meaning of a certain ruling (issued in a particular context) may mean losing the very purpose for which that particular ruling was initially given. This goes to show that the application of a rule may vary from situation to situation. This variation must, however, be dictated by the actual aims and objectives of the Law-giver, and not by any personal agenda of the jurist or legislator.
The legist must also have a thorough knowledge of the principles of legislation and the style followed by the Law-giver in order to carefully observe these in his legislation. This can be achieved only when one has studied the essentials of the Islamic Shari’ah and looked into every injunction in it. How did the Law-giver establish balance and harmony among the rules he gave to humanity? What measures did he take to prevent wrong and secure right? How did he take due care of human nature? On what lines did he reorganize human affairs and how did he subject them to discipline? How did he encourage humans towards their lofty ideals, take into consideration their inherent weaknesses and at the same time, create the necessary facilities for them? All of these aspects need careful study and serious reflection, for which the literal meaning and wisdom of Qur’anic text and the Prophet’s actions and sayings have to be kept in view.
The changing circumstances and situations that call for modifications or reframing of by-laws, need to be examined in the following two ways. Firstly, we should take note of the exact nature of any change that may have taken place, its essential characteristics, and the factors responsible for it. Secondly, we should see these changes from the Shari’ah perspective, and frame the necessary amendments in the by-laws to suit the new situation. We can classify these changes into the following two broad categories.
In category one we may place those changes that take place due to a change in the socio-cultural environment from the natural outcome of the evolutionary process of man’s advancements, discoveries, and developments over time. From the point of view of Islamic Law, these are natural changes that cannot be reversed, nor is it desirable to do so. We are instead required to formulate fresh by-laws, rules, and regulations according to the Shari’ah’s principles, to cater for such changes taking place in the realms of trade, economy, and finance.
Under the second category come those changes which are not the natural outcome of the civilizational process of change, but result from the hegemonic control of the capitalist neocolonialism on the world’s trade, economy, and finance. The changes that have taken place as a result of the dominance of the capitalist trend are not natural or real transformations in the eyes of Islamic Law. These are actually sham transformations, which can be effectively wiped out; and this is in fact what is badly needed for humanity’s salvation and welfare. We are duty-bound to use all of our intellectual, moral, and material resources to remove this repressive system from the world’s economic scene and replace it with the benign system of economy and finance bequeathed to us by Islam.
General rules of exception
The Islamic Shari’ah offers sufficient room for relief in exceptional cases and exigencies. Some of the principles of Islamic Jurisprudence are: It is thus an established rule that Islam is for ease and relaxation where there is a hardship. However, this does not mean that it can be made in routine practice. There are definite rules and regulations for this relaxation, which can be understood when one looks carefully at the exceptions approved by the Shari’ah. Among the rules to be observed for exceptions in order to avoid any willful deviation from the established norms of the Islamic Law are.
The first step is to note the nature of any hardship. Every situation that may appear difficult does not justify a relaxation, otherwise, no law can remain practicable at all. Relaxation must necessarily correspond to the level of hardship. Thirdly, to prevent harm, no alternative course is permissible that may be either equally or more harmful. The fourth rule is to give priority to repelling the wrong over securing the right. According to the fifth rule, permission for relaxation ceases to apply once the cause is not there.