Maqasid Shariah and Islamic Fin PDF

RESEARCH PAPER (No: 32/2012)
THE OBJECTIVE OF THE SHARAH IN ISLAMIC FINANCE: IDENTIFYING THE ENDS (MAQID) AND THE MEANS (WASIL)
ASSOC. PROF. DR. MOHAMAD AKRAM LALDIN DR. HAFAS FURQANI
Assoc. Prof. Dr. Mohamad Akram Laldin*, Dr. Hafas Furqani**
ABSTRACT Islamic finance attempts to rearrange modern financial practices in line with Sharah principles and requirements. The industry has grown considerably over the last three decades and has a global reach. As it rapidly develops in Muslim countries, it is also penetrating the Western world. We contend that this trend is being driven not only by operational compliance with the requirements of Islamic law but also because of the objectives and values it promotes. Islamic banking and finance (IBF) was intended to bring an Islamic vision of the economy to the financial sphere in an effort to realize human wellbeing (malaah) and a just and fair order of society. Financial practices are to be arranged to meet those objectives. Recently, interest has been growing in the industry regarding the objectives (maqid) of the Sharah. This interest has been driven by the perception that satisfying the minimum legal requirements of Sharah compliance may not be sufficient. The paper attempts to elaborate the concept of maqid al-Sharah and its application in the financial sphere. This is done by investigating the ends (maqid) that ought to be realized and the means (wasil) employed to realize those goals.
Keyword : maqid al-Sharah, malaah, Islamic finance, wealth, bank
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Assoc. Prof. Dr. Mohamad Akram Laldin is the Executive Director of ISRA. He can be contacted at akram@isra.my. Dr. Hafas Furqani is a Researcher, ISRA. He can be contacted at hafas@isra.my.
ISRA RESEARCH PAPER (NO. 32/2012) Mohamad Akram Laldin, Hafas Furqani
1. INTRODUCTION The development of Islamic finance is widely considered as phenomenal. Islamic finance is not only used by Muslims but also by non-Muslims. While it continues to develop rapidly in Muslim countries, it is also now penetrating the Western world. Islamic finance is seen as a movement to translate religious teachings in the financial sphere and economic life in general. Considerable attention has been given by scholars and practitioners to both the theoretical and practical levels. IBFs emergence as a practical financial system is viewed as timely in the midst of a world financial crisis and uncertain solutions to solve the crisis. Although the phenomenon might be seen by some as part of the global Islamic resurgence to reconstruct Islams legacy in modern times, the interest in its practice is actually triggered by the philosophy and system of value it offers. It is expected that Islamic banking and finance can offer a coherent perspective for understanding real economic problems as well as a genuine alternative to the very foundations of how economics and finance should be managed for human prosperity. This spirit is very much reflected in the concept of maqid al-Sharah (objectives of the Sharah), which comprise the basic philosophical foundations that give guidelines and justifications for IBFs raison dtre in contemporary times. In Islam, finance is viewed as part of the Sharah. Adherence to maqid al-Sharah as the grand objective of Islam is necessary for developing genuine and indisputable Islamic finance. We see recognition of this reflected in increased interest in using the maqid as a guide for developing Islamic finance. During the first three decades (1970s-1990s) of attempts to Islamize modern financial products, scholars and practitioners who structured Islamic financial contracts mostly focused on technical considerations for fulfilling Islamic legal requirements. However, there is growing acknowledgement that meeting legal requirements through comprehensive and systematic technical procedures is not sufficient. Attention should also be paid to the objectives of the Sharah. The Sharah compliant title carries the expectation of a financial system and practices that are truly based on all the tenets of the Sharah, namely the aqdah, Islamic legal principles (alakm al-shariyyah) and ethics (akhlq), and that serve the noble goals prescribed by Islam (maqid al-Sharah). In that light, this paper attempts to discuss the issue by exploring the objectives of the Sharah, which signify the philosophy and goals that Islam propagates in the effort to
establish an Islamic financial system. The maqid discussion will give us insight on the raison dtre of Islamic finance and provide guidelines for the direction the industry should be developed and what objectives are to be achieved. The discussion covers an investigation of the meaning of maqid al-Sharah, its dimensions and scope, how it has been conceptualized, and the means (wasil) to apply in order to realize maqid al-Sharah in Islamic banking and finance.
2. MAQID AL-SHARAH: MEANING AND SCOPE Maqid al-Sharah is translated as the objectives of the Sharah. In the financial sphere, maqid al-Sharah is considered the grand framework that provides guidelines and directions for ensuring the realization of malaah (benefit) and the prevention of mafsadah (harm) in all financial contracts. However, these objectives remain theoretical until they are applied and brought into the realm of reality. Before we discuss the concept of maqid al-Sharah, it is important to understand the meaning and scope of the Sharah. This is because the Sharah is the crux of the discussion, and the maqid are only the goals derived from it. Al-Qaraw (2007: 16-22) points out that there are differing conceptualizations of Sharah. One view identifies it with Islamic laws (akm) regulating ibdah (the Man-God relationship) and mumalt (interactions between people). Sharah in this perspective is limited to the domain of law that regulates practical aspects of human life: personal, societal, state or international relationships. When Sharah is reduced to Islamic law, it is then often equated with fiqh. In this dimension, maqid al-Sharah are put in the framework of the objectives of Islamic law or the objectives of Islam in legislation. A second view of Sharah is wider, considering it a system of life that encompasses all aspects of the belief system (aqdah), the system of ethics and morals (akhlq), and the rules (akm) governing the Man-God relationship (ibdah) and human relationships (mumalt). Sharah in this perspective covers the entire spectrum of Islamic life, including belief, morality, virtues and principles of guidance on economic, political, cultural and civilizational matters that concern not only the Muslim community but all of humanity (Berghout, 2006: 55; cf. Abdul Rauf, 2002: 3). By this consideration, Sharah could be understood as synonymous with religion (al-dn), encompassing all of human life: the ul (roots) and fur (branches).
This understanding comes from the original linguistic meaning of sharah as a source of water or path to a watering place. Sharah is therefore an all-embracing concept and framework that exists to support human existence and provide the necessary principles, values and means to establish human wellbeing (mali al-ibd) in this worldly life and the hereafter (Quran, 2:30; 3:191; 6:165; 38:27; 44:38-39; 42:13, 21; 45:18; 67: 1-2). This paper embarks from the second definition of Sharah. What is meant by maqid al-Sharah is all the goals and objectives of Islam as a system of life that constitutes standards and criteria, values and guidance based on divine revelation (wa) to be applied in practical life to solve human problems and guide the direction of human life. More narrowly framed, maqid al-Sharah are the underlying purposes upon which the Sharah is established. The Sharah as a system of life has been revealed primarily to protect human wellbeing (malaah; pl. mali). All the Sharahs teachings, injunctions and prohibitions are related to the grand wisdom (ikmah) of blessing mankind and securing human interests. All the Sharah rules that contain obligations and duties bring benefit and prosperity and all its prohibitions prevent them from harm and hardship (Laldin, 2010: 65). To quote Ibn shr (2001: 273):
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From a comprehensive thematic analysis of textual sources of the Sharah pertaining to its objectives in tashr, as well as from the general rules and specific proofs, it is clear to us that the all-purpose goal of the Sharah (maqad mm) is to preserve the social order (if nim al-ummah) and ensure its healthy progress by promoting
the wellbeing and righteousness (sal) of that which prevails in it, namely the human species. The wellbeing and virtue of human beings consist of the soundness of their intellect (aql), their deeds (amal) as well as the goodness of the things of the world where they live that are put at their disposal. Maqid al-Sharah are therefore, in the literature, often equated with malaah. AlQaraw (2007: 116) states, Wherever there is Sharah, there is malaah. It is impossible that the Sharah, which has been created by God, would have been revealed to harm human beings or the creation (Quran, 2: 143; 67: 14) or to make human life difficult (Quran, 2:185, 220; 4:28, 5:6). Instead, it has been revealed to cause humans and the whole creation to flourish in this life and the hereafter.
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Allah intends every facility for you; He does not want to put you to difficulties. (2:185). The Quran describes the role of Allahs Messenger (peace be upon him) thus:

[H]e commands them to what is decent and forbids them what is evil; he allows them as lawful what is good and pure and prohibits them from what is bad and impure; He releases them from heavy burdens and from the yokes that are upon them (7:157). The discussion of maqid al-Sharah in Islamic finance should be seen in the broader perspective. It should not be confined to Islamic objectives in laws related to financial activities. In fact, it encompasses the purpose of Islam in financial activities. While we agree that observing the philosophical underpinning of legal rulings is important, a maqidic discussion would extend the subject matter to why and for what purposes the contracts and financial activities are permitted or prohibited. The discussion of
Sharah in Islamic finance does not halt at what contracts are permitted or prohibited, what elements should be observed or what mechanisms should be followed to make the contracts legally valid, as per the dominant current discourse in Sharah-compliant finance. Instead, the maqid discussion will open up the horizon of raison dtre: why we need to develop Islamic finance in the first place, what goals are to be realized, and in what direction the industry should proceed.
3. MAQID AL-SHARAH : SOURCES AND DIMENSIONS The ultimate source of maqid al-Sharah is the Quran and Sunnah. The two are the prime textual sources of Islam. The maqid are often found in texts (nu) that explicitly or implicitly declare the purpose of the Sharah in human life. In this endeavour, intellectual reasoning (aql) is significant. The interaction of aql and nu is not only legitimate but encouraged; the combination is necessary for elaborating the comprehensive objectives (maqid mmah), which are relevant to every aspect of life, and those that relate to particular domains (maqid khah).1 They are derived through direct interaction with the nu, which necessarily involves a certain measure of independent reasoning and intellectual exertion (ijtihd) as those texts (particularly in mumalt) tend to be expressed in general terms, leaving the technical procedures and details of application to the wisdom of human beings. The Quranic statements on economics, in particular, lay down ethical guidelines and principles as the foundations for an Islamic value system in economics, instead of supplying operational mechanisms for how the system would work. Ijtihd, therefore, is required to elaborate detailed rules and ensure that the Sharah is applied in an appropriate way so that the objectives it promotes are realized. Al-Shib (1997: II/6) proposes comprehensive istiqr (inductive reading of the texts) as an approach to identify the maqid al-Sharah. This is done by collective thematic reading of a variety of textual proclamations in the Quran and the authentic Prophetic traditions to derive conclusions about the purposes of the Sharah. Ibn shr (2006: 14-5), a well-known contemporary scholar who has elaborated al-Shibs work in the modern context, elucidates that it is possible to derive the maqid by thematic inferences (istiqr) of the illah (ratio legis) behind the commands and prohibitions. This is done by: (1) exhaustively surveying the Sharah commands for which the text
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Kamali (1999) observes that close interaction can be seen between Sharah and fiqh. While Sharah is the primary source and indicates the heavenly guide, it is fiqh (literally: understanding) that discovers the Sharahs underlying essence in the effort to find answers to contemporary issues.
provides verbal indication of the effective cause (illah) and inferring the specific objective that unites similar effective causes, or (2) surveying the textual proofs (nu) in which the ratio legis (illah) of the command or prohibition is not verbally indicated but must, instead, be identified by contemplation and mental effort. When a number of commands or prohibitions have a similar or common ratio legis (illah), it can be concluded that it is an intended objective of the Sharah.2 This requires an integrative approach that looks beyond the particular concerns of individual texts to pursue a comprehensive perspective of the general philosophy and objectives of the Sharah behind all injunctions or prohibitions. The texts are not approached in a separated or scattered way (Quran, 2:85). Instead, they are read all together in conjunction with their rationale and purposes so that a balance between process and purpose, form and substance, literal interpretation and substantive understanding in formulating the law can be achieved.3 Through a comprehensive reading of the texts that captures the essential spirit that underlies the Sharahs objectives, we are able to develop a grand framework of the Sharah for real life application. Embarking from the grand objective that the Sharah is revealed in order to create a balanced order in human life whereby justice (adlah) is achieved and human wellbeing (malaah) is preserved, the derivative objectives can then be deduced (Quran, 57:25). Comprehension of the grand objective of the Sharah and the principles that serve it provides a theoretical framework within which particular texts are properly understood so that detailed legal rulings can be derived accordingly. Thus, understanding of the maqid is an essential prerequisite for undertaking the process of ijtihd and determining the operational framework and direction (al-Qaraw, 2007: 137). In ijtihd, all aspects, including illah, malaah, ikmah and maqid alSharah, should be taken into consideration so that a good result is achieved that links the universal with the particular, ul (roots) with fur (branches), and practical law with its objectives. Such a process would lead us to a balanced approach in deriving laws from the nu and produce a moderate, balanced and just output (Quran, 55:8-9). This approach is
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The best example is the classification of malaah into three categories of arriyyt (essentials), jiyyt (complementaries) and tasniyyt (embellishments). As we shall discuss later on, this classification is not detailed or explicitly mentioned in the texts of the Qurn and Sunnah. However, the scholars have deduced it based on their reading and understanding of the general objectives of the Sharah mentioned in a wide variety of texts. Kamali (2002: 17-19) discusses examples of possible errors that arise from deriving the law from a literal reading of the text without pondering over its objective and meaning.
the middle course between two extremes. On the one hand is an ultra-literal approach, which ignores the maqid in favour of rigid textual understanding. On the other extreme is an ultra-liberal approach, which throws around terms like maqid and malaah in the absence of any clearly defined methodology, and ends up disregarding, overriding or twisting the meaning of the Sharah texts.4 The rigorous technical rules of ul al-fiqh for interpreting texts and deducing laws have undergone centuries of discussion, debate and refinement. When the science of maqid is used in tandem with this time-tested methodology, it opens up the avenues of ijtihd in the effort to realize the spirit of the Sharah in practical legal rulings (Kamali, 2002: 22). This approach would not only observe the correct mechanisms in the technicalprocedural sense but, most importantly, be able to capture the essential spirit and noble goals with regard to particular actions. Hence, errors arising from a rigid literal reading of the text could be avoided. It will open up the horizons by understanding texts in relation to the context of practical realities and view the Sharah as a unity in which the detailed rules are to be read within a general framework and detailed actions are to be set in line with larger goals. Maqid-based ijtihd would link the Sharah principles and objectives to all situations in a two-way process that ensures correspondence between human circumstances in all places and times and the grand framework of the Sharah (El-Mesawi, 2006: 92). In the literature, the effort is identified as jalb almalaah (confirming benefits); taghyr aw daf al-mafsadah (changing or repelling the harmful); sadd al-dharah (blocking apparently lawful means that lead to harmful results); and raf al-araj (removing hardship). This should be done continuously until we arrive at what Ibn al-Qayyim (Ilm alMuwaqqin, 3/14-15) says: All of [the Sharah] is justice, all of it is benefits, and all of it is wisdom. Any issue [in which the ruling] departs from justice to injustice, from mercy to its opposite, from benefit to harm or corruption, and from wisdom to arbitrariness is not, in fact, part of the Sharah, even if it has been attributed to it by a process of interpretation.5
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Contradiction between texts and malaah derived from the reading of the texts is possible in practice and can be seen in the literature. Al-Qaraw (2007: 141), nevertheless, limits this to the case of ann (probable) texts or ann malaah. Qa (definitive) texts will not contradict qa malaah, and vice versa. Therefore, tawl (interpretation) of ann texts is important in order to find the qa malaah.
The full quotation in Ilm al-Muwaqqin (3/11) is as follows:
All the Sharah rules that contain obligations and duties bring benefit and prosperity and all its prohibitions prevent them from harm and hardship (Laldin, 2010: 65). Maqid al-Sharah are basically related to human interest by providing for a good order of life and wellbeing (malaah). Therefore, the discussion of maqid embraces all dimensions of human life in the individual and community spheres, the micro and macro dimensions, as well as religious (dn) and worldly (duny) matters.6 The Sharah would ensure the benefits to the individual and to the community, and all its rulings are designed to protect those benefits and facilitate improvement and perfection of the conditions of human life on earth (Kamali, 2008: 1).
This is reflected in the maqid discourse, in which scholars have attempted to classify them into various classifications to capture the essential Islamic spirit and direction in human life. Al-Ghazl is widely acknowledged as the first to attempt to systematize thinking about the maqid of the Sharah. In al-Mustaf (1993: I/74), he classifies the maqid based on a hierarchy of priority into essentials (arriyyt), complementaries (jiyyt) and embellishments (tasniyyt).7
The essentials refer to five fundamental matters: faith (dn), life (nafs), intellect (aql), lineage (nasl), and property (ml). Their protection is essential to normal order in society as well as to the survival and wellbeing of individuals, in their religious and worldly affairs; and their destruction will lead to chaos and collapse of normal order in individuals lives and/or the society. As the essential mali constitute an allencompassing theme of the Sharah and all of its laws are in one way or another related to the protection of these benefits, the Sharah takes affirmative and also punitive measures to promote and protect these values (Kamali, 2008: 4).8
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If fiqh is related to knowledge of Islamic rulings mainly related to the practical aspects of individual conduct, maqid will bring societal dimensions into the formulation of law. Al-Ghazl clarifies what he means by maqid and mali as follows:
: .
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Al-Shib (1997) and Ibn shr (2006) acknowledge the classification and elaborate further on details. A recent elaboration in the contemporary context has been done by Umer Chapra (2008). While this classification is widely recognized in the literature and applied in fiqh, it has also received
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The complementary benefits (al-jiyyt) supplement the five essential mali facilitating peoples affairs in a better way and removing severity and hardship, although their loss does not pose a threat to the very survival of normal order. The tasniyyt (embellishments) are the mali whose realisation leads to lifes improvement (tasn), beautification (tazyn), and perfection (kamliyyt), and the attainment of that which is desirable without any violation of good moral standards (makrim al-akhlq) or an excessive or extravagant lifestyle (masin al-dt) (al-Shib, al-Muwfaqt, II/22). The maqid are further classified, based on their scope, into the following: 1. 2. The Divine purposes in the Sharah (maqid al-Shr) and human goals and purposes (maqid al-mukallaf). The primary objectives (al-maqid al-aliyyah), which are the primary goals intended in the Sharah and the basic purposes by which human conduct is evaluated, and subsidiary goals (al-maqid al-tbiah). 3. The comprehensive purposes (al-maqid al-mmah), which characterize Islam as a system of life and guide the enactment of regulations in their totality, and the particular goals (al-maqid al-khah), which are themespecific and relate to specific areas of life. 4. The definitive goals (al-maqid al-qatiyyah), which are supported by clear evidence in the texts (nu), and speculative purposes (al-maqid al-anniyyah), which are not supported by clear evidence and are, hence, subject to disagreement.
The classification shows the wide-range dimensions and varieties of maqid alSharah. Realizing malaah and avoiding mafsadah is essentially a timeless agenda that requires constant effort. This is because malaah is characterized by iah (comprehensiveness, covering all dimensions of human well-being), tawassu (its scope expands with human progress) and ziydah (improvement from one level to the highest level of well-being). The effort to achieve maqid al-Sharah improves the self and society. Movement from malaah arriyyh to jiyyh and tasiniyyh;
criticism from scholars who say the classification is arbitrary in limiting the scope of human wellbeing to five categories, excluding other important dimensions and unnecessarily narrowing the maqid. Attia (2007: 18-19) points out that many classical scholars added a sixth category, ir (dignity or honor), to the arriyyt. Dignity is clearly considered important in the Sharah and, indeed, in all societies. Among those who have explicitly expanded the list of arriyyt, or expressed the need to do so, are Ibn Taymiyyah, Ibn Farn and contemporary scholars such as Ibn shr, al-Qaraw, Muammad al-Ghazl, and alRaysn. Among the additional maqid that have been proposed are equality, justice, and freedom. (Attia, 2007: 77 passim).
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from malaah mmah to malaah khah; and from malaah dunywiyyah to malaah ukhrwiyyah, reflects an increase in an individuals or societys level of wellbeing. The more that benefits are acquired and the more that harm is eliminated in all dimensions of human life, the better the conditions will be. Consequently, as realizing malaah means realizing fal, an individuals behavior should always be oriented to realize malaah. Therefore, realizing malaah is a positive force for individuals as well as society. For an individual, it is a continuous effort to reach a perfect state of being (insn kmil). For society, it is a constructive force that guides it and helps to remove its imbalances in order to become a good society (khayr ummah). Figure 1.1 Dimension and Characteristics of Malaah
3 2 3 2 E A 2 3
111111 1 C
2 3
2 3
Notes: 1. Malaah dimensions:

(A). Dn (Religion); (B). 'Aql (Intellect); (C). Nafs (Life); (D). Nasl (Lineage); (E). Ml (Property).
2. Malaah hierarchy: (1) arriyyt (the essentials needs); (2). jiyyt (the comforts needs); and (3). Tasiniyyt (the embellishments needs).
3. Malaah characteristics: (1) Tawassu (Expansion); 2). Ziydah (Improvement); 3) Iah (comprehensiveness); and 4). Boundaries: Goals, Visions, Moralities, Values.
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On the other hand, the classification also reflects a hierarchical order in practical application. The order is structured based on the level of authority, reference to the nu, and scope of application. The order can then be classified as follows. The highest comprise maqid al-Shr, al-maqid al-aliyyah, al-maqid al-qatiyyah, and almaqid al-mmah. The lowest comprise maqid al-mukallaf, al-maqid al-tbiah, al-maqid al-anniyyah and al-maqid al-khah. This means, in identifying the maqid, that the lower level should logically follow the higher level and the higher level should embrace all dimensions of the lower levels. This also means, in the case of differences and contradictions, that priority is to be given to the higher level over the lower level.
4. SHARAH OBJECTIVES IN FINANCIAL ACTIVITIES: IDENTIFYING THE GOALS (MAQID) As the Sharah is designed on the basis of and for the purpose of human malaah, maqid al-Sharah9 constitute the various dimensions of human needs, and their fulfilment will create balanced satisfaction in human life at the level of both the individual and the society and help realize human wellbeing. Therefore, maqid would encompass the micro and macro dimensions of individual and collective life. With reference to Islamic finance in particular, maqid al-Sharah refer to the overall goals and meaning that the Sharah aims to achieve from its principles and rulings related to financial activities and transactions (Laldin, 2008: 77). The maqid discussion in the literature on Islamic finance is usually framed in terms of the protection of wealth (if al-ml) as mentioned by al-Ghazl in his classification of malaah (Al-Khelaifi: 2004; Laldin: 2010; Dusuki and Bouheraoua: 2011; Ahmed: 2011). This approach is justified as the subject matter of finance is basically how to allocate resources from the surplus sector (capital providers) to the deficit sector (capital users) so that wealth is smoothly circulated and human welfare is realized. As finance deals with wealth allocation and appropriation (from mobilization until utilization), the maqid that come under the rubric of if al-ml should, therefore, be understood and discussed by looking at the nature, function and role of wealth in relation to the primary objective of realizing human wellbeing, individually and collectively, by acquiring benefit (malaah) and preventing harm (mafsadah) (Quran, 5:6).10
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The principle of realizing malaah (benefit) and repelling harm (mafsadah) is viewed as the general objective of Sharah in realizing human wellbeing. Sharah is designed in order to accomplish this mission.
To quote Ibn al-Qayyim (1991, 3/11)
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Reflecting upon various texts of the Quran and the Sunnah on financial activities, it can be stated that the Sharah has observed specific objectives in the enactment of financial laws and principles. These objectives serve the financial needs of human beings. They include the circulation of wealth in the society, enjoining fair and transparent financial practices and promoting socioeconomic justice.
4.1. Wealth Circulation Wealth circulation comprises all processes related to its creation, consumption and distribution. This objective is derived from the Quran, which provides, as a rationale for instructions to distribute one source of wealth among a number of different groups, so that wealth is not circulated among the rich in the society only (Quran, 59: 7). Islam intends to ensure that resources are circulated in the economy to activate human potential in the pursuit of wellbeing and intergenerational continuity. This perspective embarks from the concept that wealth is considered as Gods bounty (fal Allh) entrusted (amnah) to its recipient. As Gods bounty, wealth itself reflects the blessings of God on man (Quran, 62: 10) and it is, therefore, naturally good (khayr) (Quran, 2: 215, 272-3; 11:84; 22:11; 31:32; 50:25; 68:12; 70:12). Working to acquire wealth is, therefore, not only legitimated but highly praised (Quran, 16:97; 4:32). Wealth is also Gods trust (amnah) to be directed to the higher objective as implied in the mission of khalfah (Quran, 23:51-52; 115). While private ownership and consumption are recognized (Quran, 3:14-15), they have not been created to merely satisfy mans wants (Quran, 30:34) and, hence, deny and neglect the right (aqq) of society (Quran, 89:17-20). Instead, wealth is to be used in the best way to fulfil the need of individuals and society for a better life (Quran, 16:97) without any corruption or misuse (ifsd, 11: 86), wastage (isrf, 6: 141; 25: 67) and squandering (tabdhr, 17: 26). Likewise, shortsighted, self-interested behaviour in acquiring and utilizing wealth by spoiling the environment, or at the expense of society and future generations, is strongly condemned (Quran, 28:77). Wealth should be created and augmented through the right means (Quran, 4:29) and spent for the right ends (Quran, 3:92). Commercial and financial activities are viewed positively as mechanisms to circulate wealth among all the sections of society so that it is not concentrated in the hands of a few and instead goes into all sectors of the economy that would benefit human wellbeing. Islam encourages wealth to be employed in productive activities. The funds
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should not be wasted, left idle (Quran, 9:34) or managed unprofessionally (Quran, 4:5). In fact, any funds that are not employed will be penalized through zakh, which will gradually reduce the volume of wealth and put it back into circulation. Zakh is a mechanism that necessarily keeps wealth in continuous circulation. The Islamic economic system as a general framework would ensure fair and equitable mobilization and distribution of resources. Islamic finance, in particular, is developed in line with Islams objective of wealth circulation by observing Islamic rules on transactions, which have been legislated to protect wealth (if al-ml). Islamic financial institutions, including Islamic banks, takful companies, mutual funds, etc, play a role in circulating resources in society and increasing human wellbeing.
4.2. Fair and Transparent Financial Practices Permissibility (ibah) is the overarching principle governing commercial and financial transactions. This ibah principle is aimed to facilitate the realization of malaah and the removal of hardship in financial transactions. Freedom of contract is therefore not only recognized as part of the system but is also guaranteed and treated as a necessary element of a valid contract. Nevertheless, this freedom is to be used within an atmosphere of fairness, equity, justice and high morality. Any contract stipulated and agreed by both parties should be respected and enforced (Quran, 5:1). Transparency means that all financial transactions must be conducted in such a manner that all the parties are clear about all important facts concerning the transactions. This information symmetry prevents the main cause of disputes and damage to any party in all dimensions of the contract. The Quran has stressed that all agreements and contracts should be as transparent and clear as possible (Quran, 2:282, 17:35, 11:84, 26:181-182, 55:9, 83:1-3). Fairness means equity between the transacting parties, honesty and truthfulness, as well as efficiency in transactions. Fraud, deception, manipulation of any kind are therefore condemned. Islam insists that the contract is only legitimate if there is mutual consent of the parties. A transaction that takes place under pressure or accompanied by fraud or misrepresentation by any party is not valid. Likewise, Islam disapproves all commercial practices that involve explicit or implicit harm and injustice to one of the contracting parties or to the public at large or which restricts freedom of trade, or stands in violation of the Quranic injunctions and the approved business conduct (Balala, 2011: 6).
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The purpose is to protect the contracting parties from mutual injustice and resulting disputes (Quran, 2: 282). In addition, this objective also seeks to rid Islamic finance from misuse and squander, and to prevent disputes, arguments and grudges among the community regarding financial matters as well as to prevent one partys gain at anothers expense. Kamali (2008: 22), in this regard, firmly notes that justice and fairness are the hallmark values in commercial contracts. If it proves to be an instrument of injustice, such a contract must be set aside, and justice, which is the goal and maqd of the Lawgiver, must be given priority over considerations of conformity to an untenable contract.
4.3. Justice in the Macro and Micro Dimensions The maqad of wealth circulation is a macro goal of the Sharah while the maqid of fair and transparent financial practices are related to micro goals of the Sharah in transactional instruments and mechanisms. The maqad of justice embraces both micro and macro dimensions. This maqad is related to the desire of having a just order of society as well as just dealings among individuals in financial transactions. Justice in Islam embraces the individual and social dimensions.

Allah commands justice, doing of good, and generosity towards relatives, and He forbids what is shameful, blameworthy and oppressive. He teaches you so that you may take heed (Quran, 16:90). This objective is characterized in the Quran with the concepts of right, fairness, putting things in their right place, equality, harmony, balance and moderation. It is a right (aqq) to have equal opportunity, to be free from exploitation and to receive true value in exchange for ones labour. This objective underlies the substantive and regulative rules of the Sharah, the formation of the community and the behaviour of individuals (Iqbal and Mirakhor, 2007). At the macro level, the goal is to realize social justice. The Islamic financial system attempts to realize economic justice through wealth circulation, efficiency in resource utilization, fulfilling societys basic needs, elimination of poverty and improving human wellbeing. The main purpose of resource circulation (distribution) is to achieve justice, maximum efficiency and improvement of human wellbeing in general.
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This is really a challenge as earthly human life has a natural tendency to end up with unequal distribution, i.e., inequality is natural; humanity is made up of the rich and the poor, the bright and the dull, the strong and the sick, the haves and the have-nots. The very structure of society is built up on the basis of human inequality as a test, a moral struggle by individuals on the basis of mutual dependency despite the differences in Divine gifts (Quran, 2:255; 4:37; 8:74; 16:74). Human beings are expected to cooperate among themselves to properly perform the task and mission of khilfah (Quran, 11:61) in line with their role as bd Allh (the slaves/worshippers of Allah). Inequality requires the rich to help the poor and the needy (Quran, 9:71; 24:22) rather than taking the opportunity to exploit others (Quran, 107:17). While competition among society is appreciated, cooperation that results from the spirit of brotherhood among society is more appreciated (Quran, 2:277; 6:165; 16: 71; 17:30). Such social commitment is praised in the Quran as a mark of the individuals spiritual ascent. Gods love is in this spirit of sacrifice for others to create a just society (Quran, 4:8081; 16:55).11 The Islamic system of economics is structured to coordinate and harmonize the various economic interests of individuals and groups within the society to achieve the ideals mentioned above. Islam sustains this social dimension by establishing important economic institutions such as zakh, irth (standardized distribution of inheritance), waqf (charitable endowment), adaqah (charity), infq (spending for good purposes) and others.12 This is done on the basis of obligations as well as voluntary actions that emerge from an individuals consciousness of human brotherhood to contribute to societys development. This mix of individual freedom and social justice describe the egalitarian principles of Islam that ensure the system is both efficient and equitable (Sharif, 2005: 102). This framework guarantees a free market with a fair process and just mechanism that ensures fair circulation of resources in society and maintains a stable yet dynamic economic life. The State also plays a role in an Islamic economic system to ensure that individual freedom is respected while social objectives are achieved. Justice also embraces individual dealings. Economic transactions demand equal rights and opportunities and cannot become effective without the mutual consent (tar)
11
In this perspective, sacrifice for society is in human self-interest (Quran, 12:88; 34:38; 4:114) in that it purifies the soul and makes it beautiful so that love of God may be produced in it (Quran, 9:103) and hence God will bless the person (Quran, 9:71) with wellbeing in the eternal life of the hereafter (Quran, 30:38). In addition to that, several economic actions that lead to social enmity/exploitation or reduce social wellbeing are prohibited. Rib, for example, is prohibited as this action only aims at increasing ones personal welfare through unjustified means. Zakh, on the other hand, is obliged and encouraged, as it improves the welfare of the whole society.
12
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of the contracting parties. Likewise, unfair dealings or unjustified actions that lead to economic injustice or exploitation, such as bribery (rishwah), fraud or deception (ghish), cheating (tadls), uncertainty and lack of clarity (gharar) or unjustified increase in wealth (rib) are condemned. Rib is highly correlated with injustice. The prohibition is not limited to interest on loans. Instead, it is a comprehensive concept that encompasses all factors of production and distribution, such as capital, land and labour whereby one party attempts to gain benefit at the expense of the other party without giving a reasonable counter value (iwa) (AbuSulayman, 1998: 99). Rib is forbidden on the ground that it fosters the unjust acquisition of wealth at the expense of social justice, the equitable distribution of wealth and the wellbeing of the community (Choudhury, 2012). The abolition of rib also implies that Islam promotes cooperative and participatory financing for the mobilization and circulation of resources in society as a means of realizing general productivity and wellbeing.
5. MAQID AL-SHARAH IN ISLAMIC FINANCIAL ACTIVITIES: INSTITUTING THE MEANS (WASIL) As the objective of the Sharah is none other than human wellbeing, the Sharah provides the necessary ways and means (wasil) to establish and preserve it in the actual human context. Our previous discussion of the nature of maqid established that they aim at establishing malaah and preventing or removing mafsadah. Wasil (means) can be classified, in accord with the nature of maqid, into those that help achieve malaah (in this case, facilitating the circulation of wealth, promoting fair and transparent financial dealings and realizing social justice) and those that prevent mafsadah (i.e., factors that would prevent wealth from smoothly circulating, lead to unfair financial dealings or undermine social justice). Maqid and wasil, however, differ in certain aspects of their nature. While principles and objectives (maqid) are permanent and unchanging, the means (wasil) are relatively temporary, dynamic, conditional and amenable to change. Wasil are not restricted or limited, and hence creativity and elaboration are required so that the maqid can be effectively achieved. The following discussion will investigate some of these directives and mechanisms.
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5.1. Facilitating Financial Contracts To institute smooth circulation of wealth in society, the Sharah facilitates various types of transactions and strongly encourages Muslims to participate and undertake necessary types of financial activities (Laldin, 2008). In commercial activities, the underlying principle is that of permissibility (ibah). The transactions validated in the Quran and Sunnah are not exhaustive, and new transactions can be introduced as long as they do not contradict the principles of the Sharah. Therefore, freedom of contracts is guaranteed as long as it does not annul fairness and good measure as propagated by maqid al-Sharah (Kamali 2000: 69-70). In general, Islamic nominate contracts related to economic transactions are classified into three main categories: exchange (muwat), partnership (ishtirk), and gratuitous (tabarrut). Exchange contracts include simple spot sales (bay), sales creating debt like bay muajjal, salam, istin, ijrah, and work done for a reward (julah). Partnership contracts are ones in which one party assigns work/capital/obligation to one or more other parties. These contracts include agency (waklah), partnership (sharikah) contracts in the forms of murabah and mushrakah, debt assignment (awlah), and pledge or mortgage (rahn). In gratuitous contracts, ownership or rights of use are transferred without consideration (payment) or compensation. Gratuitous contracts include loans (riyah and qar), deposits (wadah), gifts (hibah), and guarantees (amn or kaflah). Every contract is designed to serve a particular purpose. Therefore, the contract should be respected and fulfilled, not only in order to protect the interests of the parties involving in it, but also to serve the very purpose of the contract that caused the parties to enter into it and willingly bind themselves to it (Quran, 5:1). If a contract were irregular due to some of its conditions (shur), it would have to be fixed. If it is defective in its pillars (arkn), it would be considered void (bil), and is irreparable. Dissolution (inill) of a contract after it has become valid (a) and enforceable (nfidh), but before or during its execution, is possible through: (1) mutual agreement (iqlah), or (2) revocation and termination due to special reasons (faskh), such as impossibility (istilah) of contractual performance, or automatic dissolution by death, destruction of the subject matter, expiry of the period, achievement of purpose, etc (Islam, 1998: 339). This is because the Sharah firmly stands for cooperation and fair treatment among the contractual parties. Therefore, it does not allow a loophole to exist so that unfair or unjust treatment could happen.
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This spirit marks the Islamic approach in commercial (financial) dealings as not only formal but also substantial. While certain formalities and substantive elements are essential for a transaction to become legally binding on the parties, this should be done through mutual agreement that brings about mutual consent and satisfaction (ri) (Quran, 2:282). Therefore, along with approval of various contractual facilities and the emphasis on fulfilment of contractual obligations, Islamic law also provides various ways to remove contractual obligation in situations of unavoidable difficulties and necessities (Islam, 1998: 368).
5.2. Establishing Values and Standards Transparent and fair dealings are considered among the main objectives of the Sharah in financial transactions and activities. The Sharah, in this regard, aims at creating an equal and fair transactional atmosphere and at protecting the parties against exploitation or imbalance between their reciprocal rights and obligations. Such imbalances tend to result from a lack of fair and objective criteria by which their rights and obligations can be determined with an acceptable degree of exactitude and certainty (Omar, 1998: 44). The application of the Sharah in the financial sphere should therefore not result in injury, harm or difficulties to either individuals or the public at large as the Sharah intends to create a positive atmosphere in commercial transactions whereby exchanges are done on the basis of brotherhood, cooperation and mutual benefit to both parties. Therefore, the Sharah institutes some values, measures and standards to be upheld in the transactions and indicates certain negative elements to be avoided, as they would nullify the objective. Those values and standards would relate to both the macromaqid dimension of having wealth circulate smoothly in society and the micromaqid aspect of having fair and transparent financial dealings. Economic exchange in Islam is inseparable from Islamic values, which must be translated into practical rulings that prevent fasd (corrupt acts) such as unfair dealing, abusiveness, stinginess, greed, unbridled individualism and exploitation of others.13At the same time, truth and honesty, responsibility, trust, generosity, justice, friendship
and cooperation14 are highly encouraged and must be preserved in financial dealings. These values would not only protect customers, stakeholders and the public, they would also promote smooth allocation of resources and fair dealings in transaction.
13 14
Quran, 2:195; 7:31; 11:85; 28:77; 107:1-3. Quran, 5:119; 39:33; 16:90; 4:58; 52:21;4:58; 40:32; 56:77; 44:17, 26; 2: 278-9; 49:13; 49: 10, 13.
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According to Abtani (2007), Islamic law cannot be separated from its moral, ethical and religious principles; otherwise, its rules will be useless. In other words, the Islamic system cannot be secular. This is because all Islamic rules, including economic and political, are connected with the faith, beliefs and worship of Islam.
Beyond the realm of values, the Islamic economic system has instituted various ways to spend for the sake of Allah such as zakh, infq, adaqah, hibah and qar. These would cultivate the spirit of brotherhood and mutual cooperation in society, assist the circulation of wealth, activate the economy and increase productivity. Conversely, destructive tendencies have been prohibited, for example, isrf (unnecessary spending), itrf (self-indulgence), tabdhr (spending on unlawful activities), and bukhl (stinginess). Itikr (hoarding) is also prohibited as it prevents wealth from circulation by halting supplies. Likewise, illegal means of wealth acquisition or causing harm to others in wealth creation are also prohibited (Quran, 5:33, 38). From the micro-perspective of transactions, in the effort to achieve justice, Islam puts in place measures to level the playing field among the parties to a contract. That includes the removal of factors that would distort equality or allow one party to gain at the expense of the others. Among the main negative elements are rib and gharar. Rib is banned because it allows unjustified increase in wealth in transactions, whether in loans (qur) or sales (buy) (Quran, 2: 275-277). An essential feature of rib is that it transfers risk onto one party and shields the other from it and guarantees it a fixed return. In a loan, rib transfers risk to the debtor, by requiring him to pay back the money lent with increment. Certain sales, especially those involving delayed payment, can be structured to transfer all risk to the buyer without the seller assuming risk (ghurm) or liability (amn) or effort (kasb). Rib could also arise due to unequal exchange in a sale. Gharar is also prohibited and considered a major negative element that would prevent a fair financial transaction. Gharar is defined as a characteristic that renders the consequences and future outcome of a transaction unknown or uncertain (majhl). It is a transaction done on the basis of pure speculation in a state of ignorance (jahlah) due to uncertainty about the existence of the contracts subject matter or failure to properly identify it, e.g., its genus, type or quantity, or uncertainty about the ability to deliver it, time of delivery, time of payment, etc. Transactions containing gharar usually lead
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to dissatisfaction on the part of the parties involved and cause harm and/or conflicts between them due to the attendant ambiguity. In the maqidic approach, law and ethics, values and practices, form and substance should integrate and not contradict one another. Sharah prohibitions and parameters should not, therefore, be understood in a merely legalistic or formalistic manner. Instead, attention should be focused on the core and substance of values and principles. In banking and finance activities, for example, the Sharah injunctions should be integrated in the operational activities with genuine concern for fair and transparent practices that contribute to the development of society and human wellbeing (Dusuki and Abozaid, 2007: 161).
5.3. Instituting Social Responsibility In the spirit of social justice, Islam balances individuals rights and their duties and responsibilities towards others. The concept of far kifyah (social obligation) puts a responsibility on those who are capable or better off to assist those who are not capable or worse off. As it is an obligation (far), social responsibility is therefore not an option. This framework of mutual cooperation and assistance should become the social context of an Islamic economy, whereby society will grow without disparity, indifference or exploitation (Fazlurrahman, 1969: 1). As wealth is an amnah, the Quran indicates that a person may consume according to his need. The rest of income or wealth (al-afwu) should be spent in charity, or the cause of Allah (f sablillh), or reinvested in a business where it may produce more wealth and contribute to employment and income for others. Zakh and adaqah are formal institutions of social responsibility instituted by Islam that ought to bring society close to the ideal of distributive justice (Al-Faruqi, 1983: 221). While it is preferred that this responsibility be undertaken from moral consciousness that it is right to take care of and assist fellow human beings, an Islamic economy is also realistic in acknowledging the responsibility of the state. It is a factual reality that man, left to himself and to market forces, would most likely not reach the desired goals and objectives spelled out above due to weaknesses in individuals (Quran, 96:6). Some other mechanisms are therefore needed. This calls for state involvement by setting up regulations, laws and policies, as well as institutions of civil society to help, along
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with government, to provide a social safety net for the disadvantaged. The constraints imposed, and incentives offered, by the norms, values and culture adopted in a society are also important. The emergence of Islamic banking and finance should be viewed in this context. IBF is a part of Islamic economics that has the potential to contribute richly to the achievement of the major socioeconomic goals of Islam such as socioeconomic justice and equitable distribution of income and wealth (Chapra, 1985: 34). The establishment of IBF is not an attempt to merely fulfil Muslim societys desire to have a legal (all) form of financial services in a strict legalistic (formalistic) sense by cleansing economic and financial practices from interest (rib), gambling (maysir), uncertainty (gharar) and other prohibited (arm) elements commonly found in conventional financial services. Corporate social responsibility on the part of IBF is more expected in society since the institutions carry the Islamic name, which implies that the institutions would promote Islamic ideals and objectives in human life (Dusuki and Abdullah: 2007; Sairaly, 2011). Islamic banks and financial institutions should take maqid into account in setting their corporate objectives and policies and also use them to verify compliance to true Islamic principles; IBFs progress will be monitored by how well it realizes the maqid in producing a good economy marked by the spirit of brotherhood (ukhuwwah) and cooperation (tawun), social equality and social justice (adlah), just and fair allocation of resources, elimination of poverty, protection of the environment and achievement of general wellbeing (malaah).
6. CONCLUSION Maqid is a comprehensive concept that explicates the very ideals/objectives of the Sharah related to human life. As the Sharah is an all-embracing concept that is concerned with human life and human wellbeing, maqid should not be reduced to objectives in the legal dimension. The maqid discussion in the financial sphere should always refer to the general objective of the Sharah, which provides a grand framework and direction for how financial transactions should be arranged in an Islamic economic system. Our perspective should not be limited to fulfilling the minimum legal requirements and calling that Sharah compliant. In the framework of maqid, Islamic finance and banking activities lead to the actualization of Sharah objectives by realizing malaah (benefit) and preventing
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or repelling mafsadah (harm). In this endeavour, the discussion would embrace the micro and macro dimensions of individuals and of society in general. The maqid (objectives) would include smooth circulation of wealth, fair and transparent financial practices, and justice and equity at both the micro and macro levels. In order to realize those objectives, the means instituted by the Sharah include facilitating financial contracts, establishing values and standards as well as inculcating a sense of social responsibility. The future trend in the development of Islamic banking and finance is expected to adopt maqid al-Sharah as the indispensable framework for structuring Islamic financial contracts and as the directional guideline for further development of the industry. Fulfilling minimum Sharah legal compliance in product structuring is viewed as insufficient. Instead, movement towards realizing maqid al-Sharah is highly valued as the means to give Islamic banking and finance a meaningful presence. This would have an impact of economic substance in the form of just and fair allocation of resources, real economic sector development, and fair and transparent financial dealings with all the ethical hallmarks of brotherhood, cooperation and risk sharing.
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Ibn shr, Muammad al-hir. (2006). Treatise on Maqid al-Sharah, translated by Dr. Muammad El-hir El-Mesawi. Herndon, Va.: International Institute of Islamic Thought. Iqbal, Zamir and Mirakhor, Abbas. (2007). An Introduction to Islamic Finance. Singapore: John Wiley & Sons (Asia) Pte Ltd. Islam, Muhammad Wahidul. (1998). Dissolution of Contract in Islamic law. Arab Law Quarterly, 13 (4), 336-368. Kamali, Mohammad Hashim. (1999). Law and Society: The Interplay of Revelation and Reason in Sharah. In John L. Esposito (ed.), The Oxford History of Islam. New York: Oxford University Press, 107-108. Kamali, Mohammad Hashim. (2000). Issues in the Legal Theory of Usul and Prospects for Reform. Kuala Lumpur: IIUM. Kamali, Mohammad Hashim. (2008). Maqid al-Sharah Made Simple. Washington: IIIT. Laldin, Mohamad Akram. (2008). Fundamentals and Practices in Islamic Finance. Kuala Lumpur: ISRA. Laldin, Mohamad Akram. (2010). Understanding the Concept of Malaah and Its Parameters When Used in Financial Transactions. ISRA International Journal of Islamic Finance, 2 (1), 61-84. Omar, Mohamed Abdel-Khalek. (1998). Reasoning in Islamic Law: Part Three. Arab Law Quarterly, 13 (1), 23-60. Sairaly, Salma. (2011). Best Practices in Socially Responsible Finance: Lessons for the Islamic Financial Industry from Leading Socially Responsible Financial Institutions in the UK. Kyoto Series of Islamic Area Studies 6. Kyoto: Center for Islamic Area Studies at Kyoto University (KIAS). Sharif, Mohammed. (2005). The Feasibility of an Islamic Economic System in a Modern World. In M. Basheer Ahmad, Syed A. Ahsani and Dilnawaz A. Siddiqui (ed.s), Muslim Contributions to World Civilization (pp. 91-108). Herndon, USA: IIIT.
Notes
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RESEARCH PAPER (No: 32/2012)

Keyword : maqid al-Sharah, malaah, Islamic finance, wealth, bank

The full quotation in Ilm al-Muwaqqin (3/11) is as follows:

Notes: 1. Malaah dimensions:

To quote Ibn al-Qayyim (1991, 3/11)

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