Language
English
English
Degree
M.A.
Select type of work
CIS Program Old
CIS publications
No
CIS Thesis
Yes
Student Name
Al-Mubarak, Tawfique
Year of Graduation
2012
CIS Library Call Number
Thesis QFIS CF 2012/8
QF Thematic Areas
CIS Program
Abstract
| Hilah, or subterfuge and artifice, covers a significant position in the discussions of Usal al- Figh (the fundamental principles of Islamic jurisprudence). The first literature authored on this subject was during the second century Hijrah, which many attribute to Imam Muhammad in Hasan al-Shaybäni, a prominent student of Imäm Abü Hanifah. Since then, among the various Schools of figh, the subject matter had been dealt with within the spheres of the respective school. A few schools including the Shäfii School of figh tend to accept the use of hiyal, while many other schools rejected it. Among the scholars who contributed to the subject matter elucidated on the fact that no hilah can be accepted at the cost of violating fundamental Shari'ah principles or establishing injustices. These were the primary parameters that the early contributors had set for determining a valid hilah. However, the parameters or the guiding norms (dawäbit as we know in Arabic) are vague and require further elaboration. It was also noted that many of the later scholars who contributed on the issue of hiyal, dealt with it from a maqäsid (higher objectives of the Shari'ah) perspective, henceforth adding the criterion that the hilah should also not violate the maqasid. These certainly prove the interrelation between hilah and the magäsid. With the ever-rising demand for Islamic banking services, many of the Islamic banks have begun to offer lucrative products which are mainly based on hilah, as a result, it also invited severe criticisms to the whole Islamic banking system. The current research follows a deductive methodology to redefine hilah and set the guiding norms on which a hilah may be accepted. And in analyzing the contemporary Islamic financial contracts, it follows the inductive methodology. The research in its attempt to redefine hilah, concludes that an act must include the four components to be considered a hilah. These are: i) miyyah (intention), i) maqsad (intent or purpose), ili) wasilah (means), and iv) shift or change of the condition or ruling. In addition to the primary parameters mentioned above, the research concludes with nine guiding norms or parameters for the hiyal to be acceptable. The current research also proposes that the Islamic banking system may use the required hiyal within the Shari'ah frameworks described in it, in order to engineer new financial products to serve their dire needs. |
CIS Research Foci