Qawaid Fiqhiyyah refers to the general regulations that are applicable to series of cases coming under frequent rulings. These rules are evident in the Islamic banking system in the form of fiqh rules in the munakahat and other transactions.
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Thus, this analytical treatise attempts to explicitly review the element of Qawaid Fiqhiyyah and how it can be as evidence in Islamic banks. Specifically, the treatise reviews the article Qawaid Al-Fiqh: The legal maxims of Islamic laws by Kamali Hashim. The discussion of Qawaid Fiqhiyyah is based on the content of this article.
According to Kamali, Qawaid Fiqhiyyah is vital in creation of the Islamic law since they are part of the basic principles that form the underlying elements of fiqh rules (Kamali, 2009). In fact, Qawaid Fiqhiyyah are part and parcel of the fiqh rules and are applicable in different cases originating from daily rulings such as munakahat, transaction and evidence among others. Since the Qawaid Fiqhiyyah supports the many minor fiqh rules, its absence makes the rulings lack any substantial ground since they would be lacking the rationale.
As indicated in Qawaid Fiqhiyyah, the intensions behind an action form the main rationale for judging such an act. In relation to Islamic banking, any transaction should be aligned to the intention of the parties involved (Kamali, 2009). Therefore, the transaction will have an effect when its purpose is directly related to the primary intention.
The Islamic banks have applied Qawaid Fiqhiyyah in declaring their regulations on customer financing on the element of non-interest because it is obligatory to act so. This action is however not informed by the simple act of continuing a traditional practice or endeavouring to offer rationalization within the mudharabah. These actions are shared between the bank and the customers since the customers are the main source of the Rabb al mal (Kamali, 2009).
The Qawaid Fiqhiyyah outlines the terms and conditions for contract between the banks and the customers with the banks performing the role of mudarib (Kamali, 2009). These contracts are very clear and specific on the various obligations of each party in all contingency of current and future interaction.
The contract also function on the trade-based and interest-based financing under which the Islamic banks are expected to first acquire the commodity requested by the client before eventually making it available to the customer. Reflectively, the contract should be aligned to the intentions and should not operate on the hardships that may beget any harm in the arrangement. This harm should be removed from the underlying customs that form the foundation of ruling.
The Qawaid Fiqhiyyah also defines the element of certainty as independent of doubt in the Islamic banking system. Actually, Qawaid Fiqhiyyah defines the principles that a bank should follow in case there is doubt in matters that are touching in the Sharia laws of banking (Kamali, 2009). In other words, the facts of an agreement as established in the laws must be honoured until the parties can establish a new conviction that reverses the previous stand. However, the new conviction must be relevant to the basic laws of banking.
In conclusion, Qawaid Fiqhiyyah defines several agreements, contracts, and nature of services that Islamic banks give to their customers. Reflectively, these rules are evident in the Islamic banking system in the form of fiqh rules in the munakahat and other transactions.
Kamali, H. M. (2009). Qawaid Al-Fiqh: The legal maxims of Islamic laws. Retrieved from http://www.sunnah.org/fiqh/usul/Kamali_Qawaid_al-Fiqh.pdf