FIQH MUAMALAT

FBF 20903

Chapter 1:
Introduction
Content of the Chapter

1. Introduction to Fiqh Muamalat

2. Transactions in Human Life and Its relation to
Fiqh Muamalat
3. Legal Sources of Fiqh Muamalat
4. The Nature of Fiqh Muamalat
Introduction

 Fiqh Muamalat provides the basic principles of

transactions for human being.
 It is the foundation of Islamic Finance.
 Knowledge of Fiqh Muamalat is essential for Shari’ah
scholars, product development officers as well as for all
stakeholders of an Islamic financial institution.
Definition of
Fiqh Muamalat

o The word fiqh is an Arabic term meaning "deep

understanding" or "full comprehension”.

o Technically, Fiqh means understanding the rulings of

the Shari’ah related to human actions from the
Sources of the Shari’ah (i.e. Al-Qur’an, Sunnah,
Scholarly Consensus, Qiyas, etc).
Definition of Fiqh Muamalat (Con’t)

o Muamalat is the plural of Muamalah which

literally means engaging with other in an action.

o Technically, understanding the rulings of the

Shari’ah for human actions relating to mutual
dealings with others.
Modern Concept of Fiqh Muamalat

o Basically, Fiqh Muamalat includes an individual’s

all types of dealings with others i.e. marriage, sale,
political affairs etc.

o However, the modern concept of Fiqh Muamalat

includes only financial transactions and dealings.
 Classification of Islamic Fiqh

Islamic Shari’ah

Aqidah Fiqh Akhlaq

(Theology) (Law) (Ethics)

Fiqh Ibadat Fiqh Muamalat

(Worships) (Transactions)

Fiqh Muamalat
Fiqh Jinayat Fiqh Munakahat Ahkam al-Siyasah
Maliyyah
(Islamic criminal (Islamic family (Islamic political
(Islamic financial
law) law) law)
law)

Islamic Finance
Transactions in Human life and Its
Relation to Fiqh Muamalat

 Conducting financial transactions is a basic

need for human being.
 A law is important to ensure justice and prevent
harming each other in financial dealings.
 Fiqh Muamalat provides laws for human being to
prevent them from harming each other in theirs
financial dealings.
Transactions in Human life…Con’t
 Fiqh Muamalat enjoins justice among human being
through the following guidelines:

 Mutual Consent as the basic for all transactions

 Prohibition of consuming others’ property illegally
 Transparency is an important condition in
agreements
 Prohibition of usury, uncertainty and gambling
Importance of Fiqh Muamalat

 Fiqh Muamalat encourages productivity and

economic development through prescribing
different types of financial contracts. E.g.
mudarabah, salam.

 Fiqh Muamalat promotes welfare among people

through prescribing some financial contracts. E.g.
qard, hibah, waqf.
Fiqh Muamalat is a basis for a progressive
society. We cannot imagine a single day
without a law for our day to day’s
transactions. E.g. renting house, pay bills,
purchasing food, transferring money, and
so forth.
Importance of Learning Fiqh
Muamalat

And it is not for the believers to go forth [to battle]

all at once. For there should separate from every
division of them a group [remaining] to obtain
understanding in the religion and warn their
people when they return to them that they might
be cautious. (Surah al-Tawbah: 122)
Importance of Learning Fiqh
Muamalat

 It is compulsory for every Muslim to know the

Shari’ah rulings related to the transactions that he
is involved in.

 Ibn Omar said: It is NOT allowed for a person to

conduct business in our markets except who has
achieved deep knowledge on religion (Narrated
by Tirmidhi).
Muhammad bin Hassan al-Shaybani was asked to
write a book on asceticism (al-Zuhd). He replied,
“I have already written the “book of sale”. He
meant that the “book of sale” already explained
what is Halal (permissible) and what is Haram
(non-permissible). Asceticism (al-Zuhd) is
nothing but desiring what is Halal and avoiding
what is Haram. (Al-Sarakhsi)
 ‫اَللي َجابي ير بْ ين َعْب يد‬
ّ ‫ َع ْن أيَِب َعْب يد‬
ّ ‫ي َر يض َي‬ ‫ّي‬
ِّ‫صا ير ي‬
:‫اَللُ َعْن ُه َما‬ Narrated on the authority of Jabir ibn
َ ْ‫اَلل ْاْلَن‬ Abdullah R.
‫اَللي صلى هللا عليه و سلم‬ ّ ‫ول‬ َ ‫أَ ّن َر ُج ًل َسأ ََل َر ُس‬
،‫ت‬‫ أَرأَيت إ َذا صلّيت الْم ْكتُوَب ي‬:‫ال‬
َ َ َْ ْ َ َ ‫فَ َق‬ A man asked the Prophet (pbuh), what if I
،‫اْلََل َل‬ْ ‫َحلَْلت‬ ْ ‫ َوأ‬،‫ضا َن‬ َ ‫ص ْمت َرَم‬ ُ ‫َو‬ pray the obligatory prayers, fast in
‫ي‬
‫ك َشْي ئًا؛‬ َ‫ َوَلْ أَ يزْد َعلَى َذل ي‬،‫اْلََر َام‬ ْ ‫َو َحّرْمت‬ Ramadan, observe the lawful things, avoid
the unlawful things, and I do not do
.‫ َرَواهُ ُم ْسلم‬.‫ نَ َع ْم‬:‫ال‬ َ َ‫اْلَنّةَ؟ ق‬ْ ‫أَأ َْد ُخ ُل‬
anything more than that, will I enter in
Jannah? The Prophet (pbuh) replied: yes.

Reported by Muslim.
Legal Sources of Fiqh Muamalat
Primary Sources:

- Quran
- Sunnah
- Ijma (consensus of the Muslim
scholars)
- Qiyas (process of deductive
analogy)
Secondary Sources:

 Urf (Custom)
 Maslahah Mursalah (Unattested public interest)
 Sadd al-dhara’i (Blocking the evil means)
 Istishab (Presumption of continuity)
 Istihsan (Juristic preference)
 The Qur’an
 The Qur’an is the first and main source of shari’ah.

 The literal meaning is reading or recitation as it is derived from

the root word qara’a.

 Technically it has been defined as the Book containing the

words of Allah (swt), revealed in Arabic to the Prophet
Muhammad (saw) and transmitted to us by continuous
testimony (tawatir).
 The sunnah
 Sunnah is the second primary source of Islamic law after the
Qur’an.

 The word sunnah literally means clear path or beaten track.

It also refers to normative practice or an established course
of conduct/behaviour passed on from generation to
generation.

 Technically, the sunnah refers to all that is narrated from the

Prophet Muhammad (saw) including his actions, sayings,
and whatever he has tacitly approved.
 Functions of sunnah in
relation to the qur’an

 The sunnah as the second primary source of shari’ah

further complements the Qur’an in three ways:

- The sunnah explains and further elaborates (tafsir)

the meanings of the Qur’an.
- The sunnah supports the rulings already stated in the
Qur’an.
- The sunnah acts as an independent source of
shari’ah.
 Ijma’ (consensus)

 The third source of shari’ah. Verbal noun of the Arabic word

ajma’a, which means ‘to determine and to agree upon
something’.

 Technically, ijma’ is defined as the unanimous agreement of

the scholars (mujtahidin) in the Muslim community of any
period following the demise of the prophet Muhammad
(saw) on any matter (al-Amidi, 1991).

 This definition includes the agreement on all matters whether

they are in relation to beliefs or morals, or legal/human
matters.
Essential requirements of
ijma’
 For a ruling to be considered an ijma’, the following
requirements must be fulfilled:

- There are a number of qualified scholars

available at the time the issue is encountered.
- All the scholars, regardless of their locality, race
and school of jurisprudence (madhhab) must
reach a consensus on a juridical opinion at the
time an issue arises.
- The agreement of the scholars must be
demonstrated by their expressed opinion on a
particular issue. The expression may be verbal or
in writing.
Cont’d

 Such consensus can be achieved in two ways:

- Explicitly in which every mujtahid expresses his

opinion either verbally or by an action (this is
called (ijma’ al-sarih, i.e. explicit consensus).

- Tacit ijma’ (ijma’ sukuti) by which some of the

mujtahidun of a particular age give an
expressed opinion concerning an incident
while the rest remain silent.
Qiyas (analogical reasoning)

 Literally, qiyas means ‘measuring or ascertaining

one thing in terms of another’.

 Technically, it is defined as ‘the extension of a

hukm of an existing case found in the texts of the
Qur’an and Sunnah or ijma’ to a new case
whose hukm is not found in these sources on the
basis of a common underlying attribute called
the ‘illah of the hukm’ (Niyazee, 2003, 214).
 The Pillars of qiyas
 There are several pillars (arkan) of qiyas which are considered essential
requirements in exercising the qiyas. These pillars are:

- Al-asl (the original case): a case about which a ruling is given

in the text and analogy seeks to extend it to a new case.

- Al-far’ (the new case): a case on which a ruling is needed and

it is the extension of the same ruling which is applied in the
original case.

- Al-’illah (the effective cause): an attribute (wasf) of the original

case which is the common factor shared between the original
and the new case

- Hukm al-asl (the original ruling): a legal position governing the

original case which is to be extended to the new case.
Example of qiyas

 Case in the text: Riba

 Original ruling: prohibition of usury in exchange of
gold and silver
 ‘illah: medium of exchange
 New case: modern currencies
 New ruling: prohibition of usury in exchange of
modern currencies.
Secondary sources… Istihsan

 Literally istihsan means… to approve or to deem

something preferable, to consider something as
good.

 Technically, ‘moving away from the implication

of analogy to an analogy that is stronger than it’,
or ‘it is the restriction of analogy by an evidence
that is stronger than it’.
istishab

 Literally means… the continuance of

companionship .

 Technically… istishab means the presumption of

continuance of an earlier rule or its continued
absence.

 In other words, istishab means the maintenance

of status quo regarding the rule by presuming its
continuance, unless a new rule is found that
goes against it.
 Maslahah mursalah
(unregulated public interest
 Maslahah literally means benefit or interest.

 A broader meaning would be ‘the acquisition of

manfa’ah (benefit) or the repulsion of mafsadah (harm,
injury)’.

 Technically, it means ‘the preservation of the purposes

of shari’ah in the settlement of legal issues (Niyazee,
2003: 240).
 Conditions for the validity of
maslahah mursalah
- Maslahah must be genuine (haqiqiyyah), as opposed to
imaginary maslahah (maslahah wahmiyyah, which is not
a proper ground for legislation.

- Maslahah must be general (kulliyyah), which means it

prevents harm or secures benefit to the people as a
whole and not to a particular person or group.

- Finally, maslahah must not be in conflict with a principle or

value that is upheld by the Qur’an, Sunnah, or ijma’, or
alter the implications of the texts. It should conform to the
maqasid al-shari’ah.
 Sadd al-dhara’i
blocking the means to evil
 Sadd literally means ‘blocking’, and the word dhara’i which
is plural of dhari’ah (synonymous) to wasilah), signifies ‘the
means of obtaining a certain end.

 Technically, sadd al-dhara’i indicates blocking the means

to an expected end that is likely to materialise.

 In other words, sadd al-dhara’i means ‘blocking the lawful

means to an unlawful end’.
 Types of sadd al-dhara’i
 Based on the nature of acts, sadd al-dhara’i is classified into
three types:
- Those that rarely lead to harmful results. The benefits
(maslahah) to be secured in such acts are greater than
the harm (mafsadah). (Sale of grapes)
- Those that usually lead to harmful results. In this case the
harm (mafsadah) is much more than the benefits
(maslahah) to be secured. ( using credit card by the
insolvent)
- Those in which there is an equal probability of harm and
benefit. This is difficult to judge subject to the respective
circumstances.
‘Urf (customary practice)

 ‘Urf literally means to know. It can be defined in

technical terms as the behaviour of a group of
people in their sayings and doings.

 Types of Urf:
- Urf qawli (customs in sayings/words)
- Urf fi’li (customs in action/practice).
Conditions of a valid ‘urf

- The ‘urf must represent common and recurrent

phenomena. It means the urf must be practiced
by the people frequently in their daily lives.
- The urf must also be dominant in the sense that
it is observed in all or most of the cases to which
it can apply.
- The custom must be in existence at the time the
transaction is concluded.
- The custom must not contravene the clear
stipulation of an agreement.
- Finally, the custom must not be in conflict with
the Qur’an or Sunnah.
The Nature of Fiqh Muamalat

 The nature of Fiqh Muamalat is different from other

types of Fiqh.

 It is important to know the fundamental nature of

Fiqh Muamalat to deal with the new issues arising
in Islamic finance.
1. Fiqh Muamalat relies on the
fundamental principles of the Shari’ah

 Like other branch of Fiqh, Fiqh Muamalat relies on

the fundamental principles and the general maxims
of the Shari’ah.

 However, it differs from others in such that the

detailed rulings of transactions are left for juristic
reasoning (ijtihad). It provides opportunities for the
jurists to make juristic reasoning (ijtihad) to solve the
issues arising among the people.
2. Permissibility as a General Rule
 The status of all matters other than rituals
(‘ibadah) is permissible until evidence is given
that a certain matter is prohibited.

 However, jurists are required to make their utmost

effort to review the sources of the Shari’ah to
make sure that there is no prohibition in the
Shari’ah of the particular matter.
3. Fiqh Muamalat appraises human
reasoning and welfare

 Most of the Shari’ah rulings related to rituals

(‘ibadah) are beyond human reasoning. E.g.
number of prayers.

 However, most of the Shari’ah rulings related to

Muamalat are based on an analogy and welfare
of human being. E.g. prohibition of eating others’
property illegally to remove enmity among
people.
4. Fiqh Muamalat is between Rigid
and flexible

o Several Shari’ah rulings related to Fiqh Muamalat

may change due to the change of
time/situation/welfare of human being e.g.
permissibility of tawarruq transaction.

o However, some basic Shari’ah rulings related to

Fiqh Muamalat are rigid and are not subject to any
change. E.g. prohibition of usury.
Conclusion

 This chapter discussed the definition of Fiqh

Muamalat and its relation with other branches of
Fiqh.
 It clarified the relation and importance of Fiqh
Muamalat in people’s transactions.
 The importance of acquiring knowledge of Fiqh
Muamalat is discussed along with the sources of
Fiqh Muamalat and its nature.
Further Readings

 Muhammad Fuad Sawari. (2009). Fiqh al-Muwamalat

al-Maliyyah. IIUM: Kuala Lumpur.
 Muhammad Uthman Shubayr. (1996). Al-Mu’amalat
al-Maliyyah al-Mu’asarah fi al-Fiqh al-Islami. Dar al-
Nafa’is: Amman.
 Aznan Hasan. (2011). Fundamentals of Shari’ah in
Islamic Finance. IBFIM: Kuala Lumpur
 Abdulazeem Abozaid. (2015). “The Role Of Fiqh In
Islamic Finance”. Retrieved from
http://ebookcentral.proquest.com/lib/kusza-
ebooks/detail.action?docID=2076529
Thank You.

Any question?
Review Questions:
o Discuss the evolution in the meaning of fiqh and
muamalat
o What is the difference between shari’ah and fiqh?
o What is the modern concept of fiqh muamalat?
o ‘Fiqh Muamalat enjoins justice among human
being’ discuss.
o What is the significance of fiqh muamalat in our
life?
o Briefly discuss the primary and secondary sources
of fiqh muamalat.
o What is the nature of fiqh muamalat?