Monday, March 26, 2012

STANDARDIZATION OF SHARIAH OPINIONS

STANDARDISATION OF SHARIAH OPINIONS/LAW IN ISLAMIC FINANCE: WHAT ARE THE ISSUES?

We often hear people involved in Islamic finance talk (in seminars and conferences) about the need to standardize shariah laws/opinions related to the practice as they claim that without such a move the sector cannot grow. They say that the impediment to the so called growth lies with the conflicting views coming from jurists of Islamic law. But the same persons when confronted with facts about the conflicting and multiplicity of the legal systems of the world and the various judicial decisions made in various jurisdictions that are also appealable at various stages of trials in civil or conventional courts, they don’t dare to say even a word about it.

As for the Shariah, sometimes their statements in this context seem to be a form of mockery of the Shariah itself. Ironically these same people are there out in the open to take advantage of the Shariah but they do even seem to give a little respect to the same system. Observers may tend to describe them giving more respect to the other systems of law, when they readily accept the relevant pronouncement from that side without a word being said about its wisdom and appropriateness. For them what are decided are the truth and the whole truth beyond any question whatsoever. But when it comes to Shariah, due to their lack of understanding or even less respect of the system, they do not have any reservation to spare.

Are they not mindful of the fact that in today’s world there are many legal systems in operation in different parts of the globe with salient feature. Even within the boundary of a legal system based on English Common Law itself there are many variations; British law and American law originated from the same source i.e. the English common law, but the two are different in some respects. What about socialist legal systems of China and Russia? Are they not different from the so called Western law?. Even in Europe itself, everyone knows the distinctive features of the Continental legal system of mainland Europe as opposed to the system followed in England.

So when it comes to the different mazhabs in Islamic law (operating in different parts of Muslim lands with varying degree of application) like the Hanbali, Shafie, Maliki and Hanafi for instance, why do these people feel sometimes that they are at liberty to say negative words about the Islamic Shariah system without proper comprehension? Do they know that the mazhab system is a form of standardization effort tested over long period of time in Islamic history just like the multiplicity of the world legal system we have today?.

Partly the answer for the above lack of understanding comes from the fact that the Shariah system is not implemented in many parts of the world in a comprehensive manner for too long where people can see its beauty. In fact what happens is that in many cases even though the transactions may have been structured based on Shariah principles and rules but they lack proper supports from the legal system within which they are being practiced as in many cases, Islamic finance has been pursued within and subject to conventional legal framework. The second possible reason could be that in conventional finance the anchor contract employed is one of lending and borrowing (with interest); the central concept in conventional finance. But when it comes to Islamic transactions, there are a lot of other contracts to apply given the essence of Islamic transactions that is based on sale with its various structures. Practitioners/players (many join from conventional experience/practice) are normally at lost to appreciate the underlying distinction between Islamic and conventional transactions, so the easiest thing to say if you are in these circumstances is the phrase like “Shariah law is very confusing; it has so many views and opinions”.

Paradoxically why they did not say the same thing about the various legal systems and rules or decisions coming out the conventional legal system?. Perhaps some may have apprehension of the law of contempt in conventional courts to say so. Since there is no Shariah judge with a full power in sight, (the one that may even send them to jail for contempt), we have a free ride, they may say…