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Certainty in Islamic Legal Theory: An Enquiry into its theoretical Foundations and Implications on Sharia, with focus on its effects on the development of Islamic Finance Law

Citation: Ali, Ali (2017) Certainty in Islamic Legal Theory: An Enquiry into its theoretical Foundations and Implications on Sharia, with focus on its effects on the development of Islamic Finance Law. Doctoral thesis, University of London.

Ali, A - PhD Thesis - IALS - 2018.pdf

Creative Commons: Attribution-No Derivative Works 4.0

This research aims to critically investigate the arguments upon which the certainty of Islamic Legal Theory (Usul al-fiqh) is based. Muslim scholars have argued along the centuries that usul al-fiqh is a methodology constituted of certain sources of law: Quran, Sunna, and Ijmaʿ; there are other sources that are not certain. By certain, the usulis (scholars of Usul) mean that the sources have certain authority to produce law and, under certain conditions, this law will convey the certain divine will. This makes the law divine and hence, absolutely rigid and unchangeable. The prohibition of riba (usury or interest) and alcohol is certain, therefore, this prohibition cannot be changed in any time or circumstance except under the rule of necessity (ḍarūra) which is usually regarded as exceptional circumstances. The usulis along with modern Muslim scholars have always argued that Sharia is an adaptable system despite its divine nature which entails immutability. For this to be the case, it is divided into a constant (thābit) and changing (mutaghayyir) parts. The constant part is the certain sources and certain law derived from them; these have timeless validity, whereas the changing part is based on uncertain sources or mechanisms of deriving law and is thus the field of ijtihad (legal reasoning). This latter part forms the adaptable side of Sharia and, thus, gives it eternal validity. This research is concerned with the former part. It will critically look at the arguments made by the usulis to establish the certainty and unchangeability of Sharia and how this certainty has affected Islamic law, particularly, in finance. These effects are manifested in many areas of modern financial industry like the prohibition of banks interest, Insurance, and many forms of financial derivatives. They show how the theoretical and abstract polemics of Islamic legal Theory have impacted the mundane, real-life issues of Muslims in the modern times. It is the finding of this research that the arguments made by the usulis to demonstrate the absolute certainty of the sources of Sharia, Quran, Sunna, and Ijmaʿ, are unfounded. There is no agreement between them on the main pillars of certainty such as the concept of tawatur (concurrent testimony), the history of the written Quran, the soundness and validity of hadith, and the concept and authoritativeness of Ijmaʿ. Nor is there clear conceptualization or demonstration of this certainty in the arguments presented by the usulis, arguments which suffer from internal inconsistencies and unfounded conclusions. The law which has been derived from these sources, thus, is characteristic of unjustified rigidity which is a result of the perceived certainty of its sources. And throughout the history of Sharia, jurists have tried to circumvent the law in different ways, such as the rule of necessity, since they could not change the certain law. This research finds that this rigidity was manifest in the case of the prohibition of banks interests as a result of considering it to be the forbidden riba.

Creators: Ali, Ali and
Subjects: Law
Divisions: Institute of Advanced Legal Studies
Collections: Theses and Dissertations
Thesis
Dates:
  • December 2017 (submitted)

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