The Place of Shari’ah in Contemporary Islamic Societies Essay

Progressive Concept of Shari’ah and Fiqh

A part of Shari’ah more concerned with the actual behaviour of man in this world is termed Fiqh which consists of detailed rules and is closer than Shari’ah to the concept of law, though often the two original terms are used as synonyms. Fiqh, in spite of having a narrower ambit than Shari’ah, covers a much broader area than law by including such rules as those on purely religious observance. A substantial part of Fiqh, however, correlates to the present-day notion of law.

For convenience, Shari’ah or Fiqh is often rendered in English by the term ‘law’ and sometimes by the term ‘jurisprudence’ , though the latter is apt to generate confusion because of its particular use in English for a branch of jural study on the theoretical basis and philosophical aspects of the law.

Faqih (sing: Fuqaha) is a scholar who is versed in Fiqh and, being religious, is required to be pious and observant. He is a religious jurist, sometimes referred to in the Western literature as a ‘jurisconsult’. In the following research, we shall generally employ ‘law’ for Fiqh, which itself is a part of Shari’ah and not infrequently equated with it, and shall utilize ‘ religious jurist’, or simply ‘jurist’, for a Fuqaha.

Another clarification to be made concerns the concepts of ‘school’. Islamic law is not a uniform or unitary system. It consists of subsystems according to various schools. A ‘school’ refers to a particular Islamic faith and the related subsystem of law, each a system in itself, and not to a trend of jurisprudential doctrine or thought.

There are five major Islamic schools today of which four are Sunni and the fifth is the Shi’ah, itself divided into several branches of which the most important is the Twelve (Ithna Ashari). Depending on the level of comparison, these schools present differences which distinguish them from each other and similarities which bring them together. There are notable differences in methodology and detailed rules between these schools. Our reference to the particularity of Sunni law in this research is exclusively to the four Sunni schools, Hanafi, Maliki, Shafi’i and Hanbali.

It may, therefore, be said, as a first categorization, that there are Sunni schools and Shi’a schools, albeit that each are divided into individual branches. In a broader context, all the schools, whether Sunni or Shi’ah, have a common core in history, sources, classification, methodology, and so on, which makes it possible (notwithstanding variations and disunity in details) to treat Islamic law as a comprehensive system on its own, distilled from the general features of its various schools and branches.

All the four Sunni schools developed from the beginning of the second/eighth century. They were founded by, and respectively named after, pious and learned men, each referred to as ‘Imam’. These schools are the Hanafi, founded by Imam Nu’man Abu Hanifh (d.150/767); the Maliki, founded by Imam Malik ibn Anas (d. 180/796); the Shafi’i, founded by Imam Mohammed ibn Adris al-Shafi’i (d. 204/820); and, the Hanbali, founded by Imam Ahmad bin Mohammed bin Hanbal (d. 240/855). Each, particularly the Hanafi school, was subsequently further developed by the respective disciples of the founding Imams who were themselves eminent jurists in their own right.

The Traditionalist and the Rationalist schools of thought are two schools that have come forth as a result of the evolution of Islamic law through these two approaches. These are associated with their respective differing views on the law sources. However, considering Qur’an as the empirical source, the former trend tends to restrict itself to Traditions (Sunnah), the words and deeds narrated from the Prophet Mohammed (P.b.u.h) as a source of the law, while Rational Principles (Aqli) are supplemented with the latter trend. The paragraphs to follow shall shed more light on the subject of the sources of these elements.

Of the four Sunni schools, the first two (Hanafi and Maliki) developed almost concurrently, and the third came about just after the first two and partly overlapped in time with the fourth. The Hanafi school, adopting a Rationalist approach, allowed the greatest latitude for ‘free reasoning’ (ra’y), while the Maliki school was Traditionalist. The Shafi’i school was ecletic, trying to reconcile the first two, for which reason its founder was accused of being a Traditionalist by the Rationalists and of being a Rationalist by the Traditionalists. He was in fact both, but predominantly a Rationalist. He placed greater stress on Traditions than did the Hanafi but organized, for the first time, a set of Rational Principles (Usul al-Aqli’ah) for the inference of detailed rules out of primary sources which brought order to, and restrictions on, the application of reason. These principles were in due course further refined and developed into a separate Islamic methodological discipline called the Science of Principles, or Roots, of the law (Ilm Usul al-Fiqh). The Hanbali School instituted a vigorous reversion to Traditionalism which was much later revived with a puritan austerity by the Wahhabi movement in the twelfth/eighteenth century, originated in Arabia by Mohammed ibn Abd al-Wahhab. Since the establishment of Saudi Arabia in 1926, the Hanbali faith has been revived and has been made the official school of Saudi Arabia.

The respective context of the development of these schools, together with their pairing off according to the said two tendencies, is significant. The Maliki and Hanbali, both Traditionalists in approach though different in degree, developed in Madinah, the city of the Prophet Mohammed (P.b.u.h) which is located in Saudi Arabia, which after his death gradually lost its economic and political importance. Both schools, and their conservative approach, are therefore referred to as Madani, ‘of Madinah’. The Hanafi and Shafi’i developed in Iraq (the latter also partly in Egypt) which became at the time the economic and political centre of the Muslim world.

It was until the four schools had been formed that a general conviction developed among the society. It was believed that the gates of Ijtihad had been closed. Ijtihad referred to juristic reasoning whose rules and procedures were not founded on the primary sources. This process took place during the latter half of the 3^rd to the 9^th Century. Consequently, the generations that followed had to adhere to the teachings from the four established schools who were considered the masters of the art. As a result, the Sunni law faced a long period of stagnation. The status quo remained so until later in the 19^th C. During this period of stagnation, many jurists worked within the specifications of the four master schools. They elaborated on the developed rules but rarely made any original contribution.

Some scholarly analysis from Western writers have attributed this stagnation period which led to the practitioners abandoning the Ijtihad to the aspect of uncertainty that engulfed the Islamic world after the Tartar invasion. Among the writers who have tried to elaborate the situation are Gibb and Schacht. In addition to the Tartar invasion, the uncertainty was also caused by the Mongols who had sacked Baghdad in the year 1258. These two events profoundly affected the Muslim scholars converting them into conservatism. They offered no room for innovation in matters that concerned religion. As a result, the Shari’ah was cast into iron frames that would not offer any form of flexibility and hence could not reflect the changes that were taking place with modernity. This greatly led to its decline.

In fact, the conservative ideas persist to this age. Some quarters of the Islamic world still argue that the interpretations of Shariah made during and prior to the 11^th Century should be altered and thus no variations. They still argue that any nouvelle development is inaccurate because the interpretations during the mentioned period are the only correct interpretations. This has led to formation of factions and movements that hold on to the idea that the Muslim world should revert to the original teachings and thus live a life similar to the Islamic “golden age” where definition of life was mostly framed based on the events during the prophets lifetime. Interestingly, the faction leaders tend to choose certain aspects of the society to impose restrictions while ignoring other aspects that have equal relevance. For instance, they impose restrictions on women, satellite dish installations and other medieval restrictions while using super vehicles and up-to-date weapons of war, which do not reflect those, used during the prophet’s time. In those days, camels were used as the most common means of transport while bows and arrows were the weapons of war.

The 16th and 20^th Centuries marked an era of European expansion. At this point in time, the European colonisation powers traversed the planet subjecting several countries under their commercial and political dominion. The Muslim countries were not an exception. They were also forced to operate under the European dominion. For instance, India and Malaysia were under the British dominion. On their part, the Middle East experienced certain political mandates from the British too. Indonesia tested the colonial dominion of the Dutch while the French ruled a larger part of North Africa. The French dominion was also experience din some parts of the Middle East after the Ottoman Empire hit a stag.

In the countries where mixed legal system was practised, there were instances where the shariah legal system was completely replaced by the Western style legal system. However, the colonizers did not put emphasis on the aspects of the law that was of less value to them. As a result, the countries maintained their Shariah law system on the aspects of family law and inheritance, but there were great changes in areas that could impact the colonizers. The influence of the Western system legal system was felt beyond the colonial territories. For instance, regions like the Ottoman Empire were influenced by the western style legal system despite the fact tat they were not colonized by any Western power. Consequently, Ottoman Empire resorted to the system in its quest to modernize. During the 20^th century, there were differences in the countries’ adherence to the Shariah law. For instance, Turkey had completely done away with Shariah law and embraced Kemal Ataturk while on the opposite side Saudi Arabia had adhered to Shariah law almost word by word.

Many thinkers in the realms of Islam and the major schools in the Islamic jurisdiction never accepted the fact that Ijtihad had been closed. such as Ibn Taymiyah in the 14^th century, Fazlur Rahman (d.1988), Mohammed Iqbal in Pakistan (d.1938), Hasan al-Bana (d.1949) and Mohammed Abduh in Egypt (d.1905), insistently argued that the Islamic Ijtihad had continued to exist despite the strong influence from Western civilization. To them, qualification in Islam was what would have allowed one to interpret the laws. However, the four schools did not put any form of restraint to Muslim integration of the law. Qualified Muslims could interpret the law without any problem. As their uultimate objective, they intended to develop a new fiqh that would enable the laws to revflect modernization in the nation state that was emerging. Some contemporary writers including Abdullahi an-Na’im accept this argument.

According to Bannerman, modern Islamic thought is made up of four integral parts which are:

1. Orthodox conservatives whose fundamental beliefs are centred on taqlid;
2. Quasi-orthodox conservatives, whose beliefs relate closely to the above but they acknowledge the presence of western influence to their beliefs,
3. Modernising reformers, who believe that the fundamentals of Islam must be withheld but be incorporated with the ever changing environment; and
4. Conservative reformers, who believe that taqlid is wrong and at the same time propose certain limits to ijtihad.

Modernisation and the Future of Shari’ah

Several hardships and forms of injustices was witnessed in the Muslim laws as most of the countries devoted their efforts to modernise their legal systems to reflect the contemporary challenges and other changes within the society. A good example was the Hanafi rule, which prevented women in India and Ottoman Empire to go for a devorce without thet consent of the husband. As a result, a solution to this problem was imperative for any success. Modern Islamists who were determined to promote the siyasa Shariah doctrine hence developed Takhayyur and talfiq.

Takhayyur was a term that meant inclining to an opinion given by the ancient jurists. However, if one school did not satisfactorily give a solution to a given problem, a solution could be sought from other prominent schools. These allegations were supported by the doctrine of Talfiq, whose fundamental argument is building a substantial Islamic legal rule through a combination of specifications from different schools ioin order to get solutions for several problems.

Scholars from the Muslim rights have insistently fought for the rights to freed from the stiff taqlid specifications and to be given power to Ijtihad and hence interpret the Quran and the Sunnah and come up with a new legal system which would reflect the contemporary challenges. According to them, a journey back to the sources would allow them to identify whether there were other options that would be used to interpret the laws in their originality. For instance, a Muslim man could marry as many as four wives at ago. This is according to the holy Quran. However, modernists argue that it is very difficult to attain the fairness and justice specifications in order to qualify to marry the four wives. To them, this is a prohibition of polygamy. Immediately after the verse that allows polygamy, the Quran reads:

“You will never be able to be fair and just between women even if it is your ardent desire”

Since fairness and justice are impossible, a man must therefore restrict himself to one wife.

As a result, the verse has witnessed different opinions as most people keep interpreting it in terms of their inclined opinions. Equally, the law witnessed similar differences in interpretations. A good example of this is the aspect of music and art in the Islamic religion. Some Islamic countries strongly hold on the argument that music is Haram (unacceptable). Those who hold on to this tenet draw their beliefs from certain hadiths that are against “vain talk.” The favourable form of entertainment for a believer according to these hdith’s is archery and horse breaking. In addition, drawing, painting and sculpture are form of image creations. These, according to Quranic teachings are the pathways to idolatry. The Taliban in Afghanistan put a devout belief in this teaching in practice and other groups like the extremist Muftis in Saudi Arabia, who had resorted to ban music in their respective countries, television, put all audio and video tapes to destruction, and banning photography. To them, this was going against God’s law and could lead to idolatry.

On the other side, those who ardently oppose this view argue that the Quran dictates that all things that are not expressly forbidden could be permissible and hence emphasising on these ahadith is misinformation. Their argument is further strengthened by other hadiths that highlight the importance of music as a form of entertainment as specified by the Prophet in Ansar. According to the Prophet, the music cannot be termed bad provided the lyrics are not un-Islamic and that the singers and performers do not lead one into temptation. In other beliefs, sculpture is the only forbidden form of art. As a result, calligraphy and geometric design form the main form of art that is acceptable.

With the world facing new changes in terms of technology and economy, it was imperative that the old rules are changed to reflect these changes.

Diversity in opinions can result into proper decision making. Consequently, religious scholars need support from other scholar in order to improve on their opinions. Therefore, collective ijtihad is the proper way of interpreting Shariah laws. Collectivity here involves participation in ijtihad by both the religious and non religious scholars so that each one gives his opinions in relation to his field of specialty. Encouragingly, several Islamic countries and other countries in Europe already have such councils working together. A good example is the “European Council for Fatwa and Research” which was formed with its headquarters in London in March 1997.

The new ijtihad has come up with legislations like the one concerned with infertile couples. According to them, such couples should accept the fact that they are not capable of getting a baby and hence live that way or make the decision of adopting one. Furthermore, teh couple should as well resort to sperm or egg donation as they make use of the developed technology. These options pointed out the need for new ijtihad as classical theorists never came to realize of such developments during their time. In fact, such things did not get any mention in the Quran nor the Sunnah. They therefore called for new solutions for new problems that did not exist before and hence had not been mentioned earlier by the scholars of those eras.

Despite the controversial nature of law interpretation, most of the scholars have come up with a single point of understanding. They believe that a family, as an institution, plays an important role in promotion of the religion. As a result, all parents have the right to seer children of their own. The means by which they can achieve this obligation cannot be incriminated. Therefore, they can use technology provided they afford it. However, if the sperm used does not come from the spouse i.e. comes from a different donor, this will be a violation of the Islamic law and hence not acceptable. Equally, surrogate motherhood is unacceptable because it makes use of an individual outside the family unit.

Financial realms bring out another application of contemporary ijtihad. In the original teachings of the Quran, a Muslim should avoid associating himself with interests. Precisely, he should neither give nor take interest. This clearly means that no commercial transactions should be carried out in non Muslim commercial banks as this will subject the Muslim to giving or taking of interest. They are not allowed to invest their money in such banks. This marked a major hurdle in the investment decisions of many Muslims. As a result, Islamic banking was formed in order to bridge the gap.

Among the many modernist-reformist voices that have proposed to bridge the gap between the Qur’an’s extrahistorical, transcendental value system of equal rights and its actual application in Muslim legal tradition riddled with discriminatory practices is the Sudanese jurist Abdullahi An-Na’im, disciple of Shaykh Mahmoud Mohammed Taha (d.1985), founder of the Sudanese Republican Brothers movement. Taha’s approach to the problem, as outlined in his book, had been to differentiate between the Qur’an early (Meccan) message (tolerant and egalitarian) and its later (Medinan) message (seen at least in part as an adaptation to the socioeconomic and political situation of the Prophet’s Medinan community). An-Na’im has since developed his mentor’s general principles into a framework for the radical reform of Islamic law and legal institutions that invalidates the established historical institution of ijtihad in favour of a new “evolutionary principle” of Quranic interpretation; which reverses the historical process of Shari’ah positive law formation (which was based on the Qur’an’s Medinan verses) by elaborating a new Sharia law (based on the Meccan revelations). This modernist approach, which reflects a sort of revival of the beliefs of the early Muslim jurists in the close relationship between law and culture in Islam, denies all normative powers to the Shari’ah as presently formulated but maintains the essential validity of the concept.

The problem regarding the position and ongoing normative powers of the Shari’ah in contemporary Islamic societies has continued to exacerbate polarization between secularist and traditionalist points of view. Secularists have argued that the Shari’ah has lost its normative power and is no longer applicable. They have argued that the Shari’ah laws relating to business and economy are outdated; other laws, such as those regarding slavery, are no longer valid, and the remainder “is largely contrary to international human rights and individual liberty laws.” In diametrically opposed fashion, Islamists are likewise focused on the normative power of the Shari’ah (as presently constituted) by upholding it in essentialist terms. This means that when the law and social practices diverge, it is the law that is valid and social practice that must change in order to achieve conformity with it. The less society conforms to God’s law, the more urgent is the Islamists’ demand for change and purification. As exemplified by Sayyid Qutb (d. 1966), chief ideologue of the Muslim Brother in Nasser’s Egypt, Islamism has defined sovereignty largely within a framework of law and authority where the sovereignty of God is synonymous with the sovereignty of the Shari’ah within an Islamic state. When Islamists, therefore, call for a “return of the Shari’ah” they do not mean to bring back the traditionalist fiqh (tainted by centuries of ulama-state accommodation), such as the Taliban regime has done in Afghanistan; rather, they envisage an alternative Shari’ah based on the Qur’an and, especially, the restoration of the Prophet’s Sunnah that prominently involves the building of a new state structure and new political institutions under Islamist leadership.

By contrast, when the traditionalists, especially now given a voice by conservative clergy and legal experts, call to restore the Shari’ah, their demand is generally for the restoration of Islamic fiqh to replace the legal norms and institutions that were created during the colonial period or by the post-colonialist nation-states. So far, only a few of the establishment’s religious scholars have used their professional credentials and legalistic expertise to develop innovative opinions within the legal methods of traditional fiqh. A prominent example is Yusuf al-Qaradawi, who arrived at new formulations of Muslim women’s social and political rights during the 1990s by way of the established fiqh: indigenous methods of law finding. In addition, the general public has to some degree begun to participate in the civilizational debate on the role and meaning of Islamic law in their modernizing societies. By way of the new media, especially the new electronic means of communication, non-specialist Muslim individuals, including women and the young, are beginning to create what may perhaps one day turn out to be a groundswell of scripture-based individual opinions on legal issues that they derive largely from a personal study of the Qur’an.

Is the Shari’ah as a legal system now defunct? While there is a clamor by Islamists in the Islamic world for the restitution of the Shari’ah and an affirmation of its efficacy and eternal validity, Wael Hallaq, in his opinion, argues that the Shari’ah is “no longer a tenable reality, that is has met its demise nearly a century ago, and that this sort of discourse is lodging itself in an irredeemable state of denial.” Although sympathetic to the desire of the Middle East to distinguish itself from the West, Hallaq is firm in his assertion that the concept of nationalism and the creation of modern nation-states have negated the possibility of living by any comprehensive system of Shari’ah. He supports his opinion by analysing the nature of reforms currently under way that he refers to as the “cobbling together” of interpretations of Shari’ah borrowed from various historical legal schools and other legal-theological traditions. Spurred on by international pressure to create a body of laws that will adhere to the conditions of a modern constitution, lawmakers in the various nation-states are now creating hastily constructed legal templates that will satisfy both international organizations and popular ideologies. The only way to achieve such a precarious balance is to adopt the most lenient laws offered by the various inherited legal traditions, laws that will receive the support of the population. The only sector of law maintaining any uniformity under these conditions, Hallaq argues, is personal status law. it may, however, be precisely the latter’s more Islamic uniformity, as opposed to the heterogeneity of the rest of state law, that will eventually serve to accentuate the larger legal system’s incoherence and thus contribute to strain “the intricate connection between the social fabric and the law as a system of conflict resolution and social control.” The root of the problem, according to Hallaq, is the modern state control of waqf (the wealth amassed by centuries of private unalienable property contributions formerly administered by representatives of the clerical establishment), the loss of which has undermined the ability of Islamic schools of law, institutions, and officials to function independently of the political establishment and thus has destroyed their tradition of legal innovation and adjustment that informed the formulation and practice of Islamic law in the past.

We agree with the argument of Islamic modernists such as Fazlur Rahman, Abdullahi An-Na’im, Mohammed Iqbal and Abdullah Saeed⁵⁰ who argue that contemporary challenges must be incorporated whenever the ethico-legal interpretation of the primary Islamic sources is done.. this will assist the analysts to come up with solutions to problems that would have otherwise not been mentioned in the original interpretations done during classical eras. The philological nature of Quranic interpretations must today focus on the sociological and philanthropic aspects in order to come up with interpretations that reflect the contemporary challenges facing Muslims. However, as much as the sociological and anthropological aspects have to be incorporated, it is imperative that the classical exegetical traditions are adhered to. They should act as the guidelines by which contemporary analysts can use to come up with proper interpretations. However, the sections that seem not applicable in the contemporary society should be done away with. That understanding can be helpful in our formulation of new interpretations in the light of new circumstances and challenges.

Challenges and Opportunities of Business and E-Commerce under Islamic law

Internet closes the distance in the physical world. With the existence of the internet the world is actually borderless. People can buy cloths, books, and electrical appliances through the internet and also can gather information and learn about other cultures and climates from the internet. With the development of the internet, it has not only become a way of communicating or information gathering but also of getting products sent to our home. Despite this era being referred to as e-commerce era, seminars held to discuss on the way forward of this issue have failed to put the Islamic version of e-commerce into consideration. With the challenge to fill this gap, the thesis will highlight the framework of Islamic E-commerce (E-sale contract) and the challenges that Muslims would be facing.

As mentioned above, the commercial realms have taken a new turn since the inception of the Internet. Ways that business communications are handled and how the transactions are carried has changed completely. The rapid changes are calling upon every individual and country to ensure that they keep abreast. Unlike a few decades ago when one had to go all the way to a hardware to get construction materials, currently, people only need to have a computer with internet connection. With such a connection, it only takes a click to choose anything in the virtual supermarket and next your online cart will be delivered at the doorstep provided you have an address through which the goods can be sent and also you have a credit card number that can send the money. Islamic business can be established as an amalgamation of business organizations that function under the guidelines of the Shari’ah and do not engage in any of the following activities.

• Operations involving Riba or Interest as it is commonly referred to as.
• Maisir or Gambling involving operations.
• Operations involving the manufacturing of non-halal products such as Pork or liquor.
• Operations involving Gharar or elements of uncertainty such as those found in modern day insurance banking.

According to Yusuf al-Qaradawi (a modern Muslim scholar from Egypt), there is no prohibition of trade in Islam in any circumstances other than those that involves the promotion or encouragement of cheating, exorbitant profiting or the engagement in activities that are classified as haram.

Like any other form of business, the Islamic business entities seek to maximize their profits. However, they have to ensure that the social welfare is put in consideration.

In the olden days, the most practised economic activity was trading, and mostly barter trade, but still trading was a major source of livelihood for them. The trends have not changed much today only there is use of cash and plastic money. Technology has so much advanced trade especially the internet. This invention that may meet the eye of an unlearned person as a disorganised interconnection of different wires made alive by the use of telecommunication lines.The revolution is so strong any business in whatever field, Islamic included, needs this technology to survive in the market today.

Islamic businessmen and women need to embrace this development to coexist with other businesses without getting chocked. The Shari’ah guidelines in business however have to be considered when formulating a plan of action for the Muslim brethren in the E-commerce sector.

Three rules of thumb are to be followed when dealing in Islamic e-commerce dealings, first is the offer made, second the acceptance of the offer and thirdly the consideration of this offer. Once these have been met the contract is not against any of the Shari’ah guidelines which consult from the Ibahah. The law assumes that all things are acceptable if specific Qur’anic injunctions are not used.

The notion is that if something is not directly stated to be wrong then it is not according to the maxim “lawfulness is a recognized principle in all things.”

Business done in the perspective held by Islamic people is downhill since sellers and buyers are protected if adhering to their principles. The only difficulty can come in if one tries to avoid the riba/gharar, it is next to impossibility. This is because nearly all deals made will involve them whether directly or in another way. Maisir which is another law,and selling illegal products are also to be adhered to. All the laws should be considered even when profit maximisation and success are key.

Most Muslim business people ignore the Gharar law and the Riba. The latter is interest or gain from lending out. The conventional financial structure benefits from this.an Islamic business would face problems if it does not uphold this because it is like not following the Islamic principles.

Riba is clearly prohibited from the Qur’anic perspective:

“Those who devour usury will not stand except as stand one whom the evil one by his touch hath driven to madness. That is because they say: ‘Trade is like usury,’ but Allah hath permitted trade and forbidden usury. Those who after receiving direction from their Lord, desist, shall be pardoned for the past; their case is for Allah (to judge); but those who repeat (The offence) are companions of the fire: they will abide therein (for ever)”

The only solution to the problem of obeying Riba would be in having banking systems that are Shar’iah compliant this is in operation in most modern banks.

Muslim business people just starting business should not be involved in Riba in the financial processes when selling online. To avoid, it they should engage in Islamic banking which covers all the processes in adherence to the law. Some of the products covered are Mudarabah, Musyarakah and Murabah.the change is universal and cannot be avoided.

Islamic banks have provided Muslims with the advantage to use commonly used systems that are not Shariah compliant. The systems in these banks have to be compliant and abide by the laws even for e-commerce.

The other challenge has been the gharar elements especially in the area of trading contracts. Many hadiths have been identified on the same issue, most of them specific in terms of scenario. A commonly cited hadith is that quoted by Imam Ahmad, Imam Muslim, al-Tirmidhi, Abu Dawud, Ibn Majah and al-Nasa’i, all of whom do so upon the authority of Abu Hurayra that:

“The Prophet (P.b.u.h) prohibited the gharar sale”.

The Shari’ah established that in order to ensure fair dealings between parties in contracts, any case in which an uncertainty leads to an unjustified enrichment in contract is prohibited According to Kazi Mortuza Ali in his paper “Introduction to Islamic Insurance”, gharar can be found in all the business dealings in which a party involved in the contract has no perception or idea about what the party shall receive upon the conclusion of the bargain. Yusuf al-Qaradawi defines gharar as an action in which something is sold with clear incorporation of uncertainty and can be expected to lead to the generation of conflict or an unjustified enrichment.

Certain conditions must always be ensured before one accepts gharar. The conditions include:

1. both the goods and the prices in question must be deliverable and existent.
2. a clear cut establishment of the item’s characteristics and their counter value.
3. predetermination of the elementary aspects of transaction like quality, quantity and the day that the goods are supposed to be delivered.

Maximization of falah will be eminent if riba and gharar, together with the other provisions are avoided. This will mean that the Islamic business will attain its fundamental goals.

The essentiality of e-commerce means that muslims must be in position to make use of this technological development so as to maximize their profits. However, before application, the Shariah laws must be applied. If well applied, falah and maximization of profit will be inevitable. Any muslim business man must therefore be able to apply these requirements in order to be able to achieve success in his business while at the same time looking forward to a better life after death. To maximize on Falah, the business must stick to Shariah while sticking to the principle prohibitions will assist one to avoid riba, maisir, gharar. Finally, the business should not sell outlawed products like pork. Furthermore, the profits could be maximized if the business engaging in e-commerce is able to strategically differentiate their products by using an appropriate and competitive market mix and quality in services. Considering that it is obligatory to incorporate the business with the Quranic teachings, the business must clearly describe the products and the delivery details. The Islamic businesses can also make use of e-commerce provided they stick to the teachings and specification of the Shariah requirements. According to the Prophet (P.b.u.h), honesty is an integral part of any Islamic business. This is what he taught and acted. For those who will ensure this, they will be “considered with Martyrs on the Day of Resurrection.

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The Qur’an: Surat al-baqarah, verse 275.

The Qur’an: Surat al-Nisa, verse 129.

Thomas, David Y. One Hundred Years of the Monroe Doctrine, 1823-1923. New York: Macmillan, 1927.

Yusuf al-Qaradawi, The Lawful and Prohibited in Islam 1960. Web.

Wael Hallaq, Can the Shari’ah be Restored. n.d. 2010. Web.