QAWAID FIQHIYYAH (ISLAMIC LEGAL MAXIMS) ISB 653 PREPARED BY:

NAME
1. SITI NORHASIMA BT MOHD YUSOF 2. NUR FAHEZZA BINTI MUSA 3. NORFAJRINA BT ISMAIL 4. NURUL AIN BT MOHD ANUAR 5. NURUL HANISS BT MANAB

MATRIC NO
2010126529 2010108559 2010521411 2010730561 2010127963

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PREPARED FOR: PM CHE ZUINA BINTI ISMAIL

FOURTH edit Master subtitle OF DHARAR) Click to MAXIM (THE PRINCIPLE style

OUTLINE
INTRODUCTIO N * Meaning * Sources * Level of necessity * Application * Related Maxim

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APPLICATION OF LEGAL MAXIM IN CURRENT PRACTICE * Application in Islamic Inter-Bank Money Market (IIMM) * Government Investment Issue (GII) * Negotiable Islamic Certificate of Deposit (NICD) * Commodity of Murabahah Programme * Tawaidh 10/6/12

INTRODUCTION MEANING SOURCES

LEVEL OF NECESSITY Click to edit Master subtitle style

APPLICATIONS

RELATED MAXIM
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INTRODUCTION
Legal maxim is important to solve the problems LM developed gradually & history are parallel with the fiqh Most Important maxim are reciprocated in QURAN & HADITH

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MEANING
REMOVE ALL KIND OF HARM

HARM SHALL NOT BE INFLICTED

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ANY HARM SHOULD NOT BE RESPONDED

HARM SHALL NOT BE INFLICTED ( LA DARAR)

HARM all kind of harm

- involve individual, society , environment,

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ANY HARM SHOULD NOT BE RESPONDED

- Will incurred further harm Example: A damaged the property of B intentionally cannot under any circumstances damage the property of A in revenge, but he must get the compensation for the damages on his property from court of law.
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Scholar has classified

HARM

INTENTIONA LLY

UNINTENTION ALLY

Definitely forbidden Bear the consequences harm of his action.

-without intention to course the

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sources

The lesser of two evils should be perpetrated to avoid the greater. Prohibition on causing harm:

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The month of Ramadhan [is that] in which was revealed the Qur'an, a guidance for the people and clear proofs of guidance and criterion. So whoever sights [the new moon of] the month, let him fast it; and whoever is ill or on a journey - then an equal number of other days. Allah intends for you ease and does not intend for you hardship and [wants] for you to complete the period and to glorify Allah for that [to] which He has guided you; and perhaps you will be grateful. 10/6/12

And strive in His cause as ye ought to strive, (with sincerity and under discipline). He has chosen you, and has imposed no difficulties on you in religion it is the cult of your father Abraham. It is He Who has named you Muslims, both before and in this (Revelation) that the Messenger may be a witness for you, and ye be witnesses for mankind! So establish regular Prayer, give regular Charity, and hold fast to Allah. He is your Protector - the Best to protect and the Best to help

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LEVEL OF NECESSITY

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DHARURIYYAH (necessity)

Protect the primary human value ( maqasid shariah) protecting, preserving & preventing: i) religion. ii) life iii) intellect (aql) iv) descent v) wealth
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HAJIYYAT (convenience)

It is not too vital like preserve the 5 foundations. People want to own these things to satisfy their needs. not compulsory to have it. Example: car hand phone.

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TAHSINIYYAT (luxury)

Luxury things It can improve life to be more comfort. People wish to have these things to fulfill their satisfaction of needs & wants.

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application
Period of leasing an agricultural land ends before harvesting the crops. Sells anything that could rots quickly

Driving recklessly on the highway which may lead to accident.

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Related maxims

harm must be prevented wherever possible - all necessary measures must be taken to prevent any harm from happening. greater harm must be prevent event at the expense of the lesser harm - there are two evils, the lesser evil can be committed in order to prevent the greater evil from occurring
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APPLICATION OF LEGAL MAXIM IN CURRENT PRACTICE

Click to edit Master subtitle style

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1919

1.

APPLICATION IN ISLAMIC INTER-BANK MONEY MARKET (IIMM) - Government Investment Issues (GII) - Negotiable Islamic Certificates of Deposit (NICD) - Commodity Murabahah Programmed TAWIDH (COMPENSATION) The permissibilty of tawidh a. HADITH b. QIYAS c. CONTEMPORARY FATWAS

2.

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2020

1.APLICATION IN ISLAMIC INTERBANK MONEY MARKET (IIMM)

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Application in Islamic Inter-Bank Money Market (IIMM)

Introduced on 3rd January 1994

Source of short-term investment outlets and opportunity for banks to manage their potential asset and liability mismatch

To provide the Islamic banks with the facility for funding and adjusting portfolios over the short-term and hence maintaining the funding

Manage liquidity because liquidity mechanism also necessary in order to promote stability in the system

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Issued by the Government of Malaysia based on qard al-hasan principle

Government Investment Issue (GII)

The transaction replaced by bay al-inah

Secondary market via concept bay al-dayn 10/6/12 2323

Central Bank of Malaysia sold the Shariah-compliant asset (GII) to the Bank Islam at RM 1 million on deferred terms

Bank Islam will sell back the asset (GII) to the Central Bank of Malaysia on cash basis at RM 950,000,000. The difference of price is regarded as profit to the financier 10/6/12 2424

Negotiable Islamic Certificates of Deposits (NICD)

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1.

A high net worth individual client who wishes to deposit RM 1 million in NICD with an Islamic bank would normally expect a fixed return from the bank

2.

The banks sell it asset worth RM 1 million to the client and get paid on cash basis. The bank now secures RM 1 million deposits

3.

The clients sells back the share cerificates to the bank at deffered price, which is based on a profit rate for example 7.5% for duration of 6 months (7.5% x 6/12 x 1,000,000 = 37,500. The bank now issues the client NICD worth RM 1,037,500 as the nominal value. The issuance of the NICD is undertaken as evidence of the RM 1,037,500 debts that the bank owes the client

4.

At maturity, the NICDs are redeemable at par value where the client gets back the RM 1 million deposits plus RM37,000 profits. More importantly this NICD is tradeable in the secondary market for liquidity purposes 10/6/12 2626

Commodity Murabahah Programme (3

) Commodity Broker B (2 ) Click to edit Master subtitle style (1 ) Bank B

Commodity 10/6/12 Broker A

Central Bank of Malaysia

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Agrument Prohibiting Bay Al-Inah

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Among the Argument are

1.

The companion report relied by those who reject Bay Al-Inah is considered as weak both in terms of its transformation (sanad) and wording (matan). The proponent/medernist argue that one of the narrators of the hadith named al-Aliah binti Anfa is unknown (majhulah). Al-Dar Qutni regards her as unknown figure, thus the chain of 10/6/12 transmission is doubtful and

2. The companion report is a narration from Saidatina Aisyah: A mother ask Saidatina Aisyah

O mother who Beleivers! I have sold a slave belongs to Zaid bin Arqam to Ata for 800 dirham. Since Ata needed What is your opinion if I some money,take forgo the profit and I the principal sum have boughtonly? back the slave before it 10/6/12 is due for me to

How could you execute such a bad sale. You should inform Zaid Bin Arqam that his conduct has extinguishes all his rewards for participating in

Aisyah then recite a verse from means:

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Whoever receives an admonition from his Lord and stop eating riba shall not be punished for the past, his case is for Allah (to judge)

They claim that Saidatina Aisyah is in not in capacity to determine the status an validate the rewards for jihad that Zaid had involved togather with the Prophet p.b.u.h in the battle fields since Zaid had conducted an ijtihad (personal feasoning) and was of the the view that such a sale is permissable

3. On the issue hilah, the Malaysian scholars argue that not all hilah is rejected. In fact, Hanafis and Shafiis school generally approve the use of hiyal (a plural for hilah as long as it does not deny the rights of people or involved falsehood (batil) or even demeaning the religion Al-Sarakhsi strongly argued that Hiyal as they are produced by he Imam is permissible according to majority (jumhur) of the scholars, and those who detest that (the use of Hiyal) did so due to their ignorance and lack of those observation (taamul) of the Quran and Sunnah

Based on this premise, the SAC of Malaysia argued that hilah is evident in the practice of Islamic instrument in IIMM is regarded as a mode to solve the problems (makhraj) that is much needed by the people, provided that necessary conditions are duly followed in order to avoid any abuse of such contract which may lead to dispute or injustice. 10/6/12

Neither Harm nor reciprocating harm Imam As-Sayuti based on his famous book Al-Ashabah wan nazhooir assert that this hadith is significant as it embodies the fundamental principle and maxims of Islamic Jurisprudence. Based on this principle, there is a need hajiyyat to 10/6/12

Maxim of Islamic Jurisprudence that will be use in Dealing with this matter

This is supported by another of maxim of Islamic Jurisprudence: Severe harm is avoided by lighter harm/Aldarara Al-Ashadu Yuzalu bi Darari Al-Akhaffu or choosing between the lesser of two evils (akhlaf al-darayn). Within the context of our discussion, the choice is actually between having to resort to liquidity management instrument which imbued with clear-cut riba elements, or the alternative practice contentious tawarruq-based instrument. Based on this maxim, it is thought that to choose what is still disputed or doubtful (shubhah) is of lesser evil than to opportunity for transaction that is clearly prohibited. Both of the SAC of Securities Commission of Malaysia and SAC of Bank Negara Malaysia had officially endorsed both of Bay Al-Inah an Tawarruq to be used for liquidity Management 10/6/12

One of the argument raised to justify the support their adoption of Shafiis view in legalizing bay Al-Inah and Tawarruq is public interest consideration which is overcome the problem of liquidity shortage in the country, without resorting to conventional riba-based liquidity instrument and transactions.
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2. TAWIDH/ COMPENSATION

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Majma fiqh defines Tawidh as payment of financial compensation or counter value which is obligatory as result of harm causes to other parties. Tawidh is the more specific than compensation for losses (dhaman) which is stipulated by Syariah sources like Diat & Yad 10/6/12 3838 dhamanah

a)

The permissibility of Tawidh-Hadith

Based on this hadith, the debtors act of delaying payment is a loss (harmful) to the creditor. This situation has to be avoided so that business are conducted according to the principle of istiqrar tamul, that is the smooth running of the market.

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b)

The permissibility of Tawidh-Qiyas

The delay in paying off a debt can be compared with Ghasb (usurpation) of valuable property. The similarity of illah between the two that obstructing the use of property and exploiting it in a tyrannical way. According to a Shafii and Hanbali Scool, in the case of Ghasb, the usurper has the benefit of using the 10/6/12 4040 property he has seized and therefor

In the case of a delayed payment of debt, the creditor stands to lose because he is deprived of the opportunity of using the funds for trading purpose, which he could if the debt is settled within the stipulated time framed. In general, it is non-permissible to charge extra amount and it consider as riba Therefore, this loss should be 10/6/12 compensated by the debtor 4141 based on

c)

The permissibility of Tawidh-Fiqh Maxim

The permissibility of Tawidh is also supported by a maxim in Islamic Jurisprudence that is: whatever loss should be removed

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d)

The permissibility of Tawidh-Contemporary Fatwas

There are justification in Islamic law showing that the Tawidh can be used in certain transaction. For example, a fatwa resolved by Qadhi Syuraih stipulated that the imposition of Tawidh in certain transaction is permissible The permissibility is referring to a case whereby a hirer agrees to be 10/6/12 4343 imposed which compensation if he

3. EXAMPLE OF CURRENT PRACTICE (IJARAH)

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IJARAH STRUCTURE:
(1 ) (2)

(3)

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1)

IJARAH STRUCTURE: Mr. J made a Ijarah contract with

BIMB The property will transfer to Mr. J Mr. J made monthly lease installment that stated in an agreement. But he was delayed the payment of rent for 3 month.
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2) 3)

According to Legal Maxim:

Whatever loss should be removed

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ISTISNA FINANCING

Arabic word: is derived from the word Sanaa Literally: Making, manufacturing @ constructing something Al- Zarqa defined it as a contract of selling a manufacturer able thing with an undertaking by the seller to present it manufactured from his own material, with specified descriptions and at a determined price Non- permissible with non-existence of subject matter Permissible if the characteristic and the view of product stated in the contract A special kind of contract which have relation with options (khiyar)
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THE PERMISSIBILI TY OF ISTISNA

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THE PERMISSIBILITY OF ISTISNA

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1. ALQURAN
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Allah desires for you ease, He does not desire for you difficulty Al-Baqarah 2:185

ALQURAN

God commands justice and fair dealing Al- Nahl 16:90

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2. AS-SUNNAH

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AS-SUNNAH AS-SUNAS-SUNNAHNAH AS

SUNNAH Rasulullah SAW said:

Every stipulation is lawful among the Muslims, except one, which declares forbidden what is allowed or allows what is forbidden. (Hadith Muslim)

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3. QIYAS

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QIYA S allowed: because it is a sale of Not be

what we do not have nor on the basis of Salam and the Prophet had prohibited the sale of what we do not have Siddiq Al-Darir: based on Qiyas and not against it as it is claimed by the Hanafis Ijma: The claimed of Ijma by the Hanafis is well-known among the major Hanafi works such as in his book: AlMasbut and Al-Badai
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4. ISTIHSAN

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ISTIHSAN

istihsan seems to represent the first legal basis for this contract especially in the literature of the classicl school of law Al-Kasani: because people are unanimous about its need Prophet said:

my community shall never agree on an error and what is good for Muslim 10/6/12 is good in the sight of Allah

5. MASLAHAH

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MASLAHAH

Refer to the unrestricted public interest in the sense of not having been regulated by the lawgiver and no textual authority can be found on its validity or vice versa

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Al-Ashgar: the used in this contract, eg

without objections from the scholars is a demonstration of the general need. Therefore, it should be legal on the basis of public interest.
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6. FIQH MAXIM

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FIQH MAXIM

necessity is judged according to its merits Permissible because of the general need and its give advantages to people harm must be eliminated to an end Option of defect is the right of the

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MODUS OPERANDI
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BAN K 1

5 3 2

Dia na

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CONSTRUC

CONCLUSIO N
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Some might say that the patient is suffering from harm or injury and Islam calls for lessening pain and suffering When faced 2 evils, the lesser one is chosen, ikthiyaar ahwan al sharrain This is interpreted to mean that continuation of painful, terminal life is better that euthanasia
Surah Al Maidah : 6

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O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles. And if you are in a state of janabah, then purify yourselves. But if you are ill or on a journey or one of you comes from the place of relieving himself or you have contacted women and do not find water, then seek clean earth and wipe over your faces and hands with it. Allah does not intend to make difficulty for you, but He intends to purify you and complete His favor upon you that you may be grateful. These ayat revealed that God does not intend to inflict hardship on you Allah never burden Muslim to bear the hardship but Allah always eliminate the hardship especially for the Muslim to perform ibadah such as praying, fasting in Ramadhan, paying the zakat, and many else

The jurists have used this evidence in support of the many concession that are granted to disabled and the sick in the sphere of religious duties as well as civil transaction It is necessary to eliminate or prevent harm to avoid the lesser harm will contribute to the bigger hardship in our life 10/6/12 6868

End of chapter thank you

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*~Group 7~* Click to edit Master subtitle style