An Overview of Sharīʿah

CHAPTER 1 An Overview of Sharīʿah

1.1 Introduction

This chapter provides a short introduction to Sharīʿah (Islamic law) and the key features of Islamic finance, familiarising the reader with the basic concepts of the law before reaching the main topic of this book. Since the scope of this research is limited, and these issues are well recognised in the literature, the discussion is confined to a general overview of the subject. This chapter consists of eight parts, including this introduction. Part 1.2 presents an overview of Sharīʿah and its origins, Part 1.3 provides a short history of the schools of Islamic law, Part 1.4 gives a necessary introduction to Islamic legal rulings, Part 1.5 addresses the main features of Islamic finance, Part 1.6 outlines the key Sharīʿah-compliant financial instruments, Part 1.7 highlights the objectives of Islamic law, and finally, Part 1.8 concludes the chapter.

1.2 Overview of Sharīʿah and Its Foundation

Sharī ʿah is an Arabic word which means literally “the path” or “the way”.1 In a religious context, it refers to the path that Allah (God) has formed for human beings to follow. Sharīʿah covers the spiritual as well as the daily practises of Muslim life, as Islam assumes no division between the secular and the religious. The complete power of God is a fundamental faith of the Islam. Hence, Allah, according to Islam, “is the source of authority and the sole sovereign lawgiver”.2

1 S. Kunhibava and Rachagan S., “Shariah and Law in Relation to Islamic Banking and Finance,” Banking and Finance Law Review 26, no. 3 (2011): p. 544; Charles P Trumbull, “Islamic Arbitration: A New Path for Interpreting Islamic Legal Contracts” Vand. L. Rev 59, no. 2 (2006): p. 626. An earlier version of this section was published as: Ahmad Alkhamees, “International Arbitration and Shariʾa Law: Context, Scope, and Intersections,” Journal of International Arbitration 28, no. 3 (2011). 2 Faisal Kutty, “The Shariʾa Factor in International Commercial Arbitration,” Loyola of Los Angeles international & comparative law review Loyola of Los Angeles International & Comparative Law Review 28, no. 2 (2006): p. 578.

However, a distinction should be drawn between Sharīʿah and Islamic jurisprudence, commonly called “fiqh”, because some non-Muslim researchers tend to equate these terms.3 Islamic jurisprudence is a subset of Sharīʿah, com- posing a single area of the broader concept. Sharīʿah serves as the basis of all principles formed and expanded under fiqh, whereas the term “Islamic jurisprudence” generally refers to scholarly comprehension and findings derived from the primary and secondary sources of Sharīʿah.4 The main sources of Islamic law are the Quran5 and the sunnah. The expres- sion sunnah means the accumulation of the teachings of Prophet Muhammad, which includes his sayings, actions, decisions, and implicit approbation or dis- approval of things.6 The secondary sources include ijmāʿ and qiyās. Ijmā refers to the uncontested approval of qualified scholars on a certain matter of Islamic jurisprudence. Qiyās describes a methodical process of analogical reasoning that is applied when one considers an issue not explicitly treated in the primary sources of Sharīʿah. This procedure allows one to get from an identified injunction to a new injunction that applies Sharīʿah opinion to the issue in question.7 Some schools of thought recognise additional secondary sources for determining the Sharīʿah position on certain issues.8 These include ʿurf, the Arabic for “custom”, maṣlaḥah mursalah (public interest), and Sad al-Dharāʾiʿ 9 (precautionary legal prohibition), which entitle the blocking of actions that could lead to unlawful ends.10

3 See: Abdulrahman Baamir and Ilias Bantekas, “Saudi Law as Lex Arbitri: Evaluation of Saudi Arbitration Law and Judicial Practice,” Arbitration International 25, no. 2 (2009): p. 262. 4 See: Auda, Maqasid al-Shariah as Philosophy of Islamic Law: a Systems Approach, p. 57. 5 “Quran” is an Arabic word which literally means “recitation”. The Quran is the holy book which Muslims believe was revealed from Allah (God) to the Prophet Muhammad. It is considered to be the highest religious text in Islam. See: “Quran,” Oxford University Press, http://www.oxfordislamicstudies.com/opr/t125/e1945. accessed 4 December 2010. 6 Kutty, “The Shariah Factor in International Commercial Arbitration,” p. 585. Trumbull, “Islamic Arbitration: A New Path for Interpreting Islamic Legal Contracts” pp. 626–27. Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, Third ed. (Cambridge, UK: Islamic Texts Society, 2003), p. 58. 7 Principles of Islamic Jurisprudence, p. 264. 8 Ibid., p. 306 and the following chapters. 9 Literally “the blocking of means”; the blocking of actions that could lead to unlawful ends. See: ibid., p. 397. 10 See: ʿAbdAllāh Ibn Bayyah, Sadd al-Dharīʿah wa Taṭṭbīqātuh fī Majāl al-Muʿāmalāt (Islamic Development Bank, 1997), p. 48; Mir Siadat Ali Khan, “The Mohammedan Laws against Usury and How They Are Evaded,” Journal of Comparative Legislation and International Law 11, no. 4 (1929): p. 240; Aḥmad ibn ʻAbd al-Ḥalīm Ibn Taymiyyah, al-Qawāʿid al-Nawrānīh