قاعدة "الأصل في الأشياء الإباحة" وأثرها في فقه المعاملات المالية المعاصرة

Abstract

This study deals with an important topic in jurisprudential inquiry, namely the rule of “original permissibility of things”, on two main planes: theoretical and historical, and practical and applied. On the first level, the researcher conducted a historical and conceptual analysis of the said rule, thus attempting to elucidate its theoretical underpinnings and its supportive evidence both from revealed sources and reason and trace its stages of development both at the conceptual and terminological levels, as it has been formulated and theorized by jurists and legal theorists in five schools of Islamic jurisprudence. On this first plane, the researcher adopted an approach combining inductive, analytical, historical, and comparative methods. On the second plane, emphasis had been put on demonstrating the juridical practical effect of the rule of “original permissibility of things” in contemporary financial dealings. Five major modes of financial transactions that are widely spread in the financial and banking industry in the Muslim world had been the focus of discussion. These are cost-plus model of purchase order (al-murabahah lil-Amir bi-al-shira’), installment sale (bay‘ al-taqsit), ‘inah sale, tawrruq sale, and bank-organized tawarruq. The approach followed here combined describing, analyzing, comparing, assessing and weighing the veracity of the juristic views adopted in these five modes in light of the theoretical principles and Shari‘ah rules already established on the first plane explained above. The study arrived at a number of findings that can be summarized as follows. There is a set of Shari‘ah conditions and criteria that have to be met in order for the rule of “original permissibility of things” to be applied to new life issues in a way that is consonant with the Shari‘ah commands and objectives. The rule in beneficial things as well as in terms and transactions is validity and original permissibility. The cost-plus model of purchase order based on non-binding promise is permissible, while that based on binding promises whether for one or both parties is not. The permissibility of simple installment sale is a matter of consensus among Muslim jurists. Regarding installment sale in which the delayed price of the commodity is more than the present cash price, the researcher holds that it should be permissible in installments which are based on selling goods with prices higher than their present prices by virtue of price deferment, while he holds that it is not allowed in cases where the purchaser is given the option between cash purchase and deferred price. ‘Ônah sale is absolutely prohibited, while simple or ordinary tawarruq is permissible with certain conditions. As for bank-organized tawarruq, the view holding its non-permissibility is predominant. Yet, the researcher is inclined towards permitting it with such conditions that would make it similar to simple tawarruq.