Shari’ah Board, The Task of Fatwa, and Ijtihad in Islamic Economics, and Finance
The rulings of Mua‟malat in today‟s Islamic Economics, and Finance can be adapted through the process of Ijtihad. While the basic principles or doctrines of the Mua‟malat are given in Shari‟ah, the interpretation of these principles to suit circumstances in different times and places constitutes the Fiqh Mua‟malat. New rulings can be reached by understanding the effective cause (Illah) and rationale (hikmah) of the original ruling and the importance of Maslaha (benefit) under the changed circumstances (Usul Fiqh); which is normally evaluated by the Shari‟ah Board members of the concerned entity. Fatwa issuing via Ijtihad is used to derive laws from the basic principles of Shari‟ah to address the needs of people in different places and times. The important aspect of these new rules is that they may at times change depending on the context of application. Islamic Finance contemporary practices of Ijtihad through various bodies like Islamic Fiqh Academy, have resolved the practice of taqlid (limitation). The doctrine of maqasid al-Shari‟ah establishes Maslahah as an essential element of the ends of law, so that it becomes an important goal in framing new rules (Shari‟ah parameters and guidelines) through Ijtihad. Thus, both the principles set by Shari‟ah and use of Ijtihad to frame new rules has Maslahah or benefit of people as the underlying basis and goal. On the other hand; the standardization of Shari‟ah may become against the fundamental premise of Ijtihad which has existed for centuries and especially in today‟s finance. If rules become standards, and imposed by legal authorities, then Ijtihad cannot be applied towards a critical and dynamic industry like Islamic Finance today. This will eventually damage the very reason that we are able to apply Shari‟ah in all times and places, that is, Ijtihad is the main reason why Shari‟ah is dynamic and is able to be applied in different circumstances. In addition; to standardize Shari‟ah rulings may mean the precedence of one Islamic school of thought over the other, which cannot be universally acceptable. There is no doubt that the synchronization of these two views has to be done through mutual understanding and collaboration between Shari‟ah scholars and various Shari‟ah key board members, market leaders, and regulators. To be very clear and accurate, the question of whether Shari‟ah standards can be harmonized is a matter to be dealt with by Shari‟ah scholars and not market professionals or regulators. The simple reason for this is because Shari‟ah scholars are specialized in their field and whether a Fatwa can be standardized or not is a matter of religious reasoning and should be taken from Shari‟ah own instructions and judgments.
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"Structured finance: complexity, risk and the use of ratings,"
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Bank for International Settlements, pages -, June.
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