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Currencies & the classics

2013-02-24
February 24, 2013

PROTECTING PROTECTON

The Tunisian al-Burzulī authored the greatest collection of fatāwā in the madhhab of Ahl al-Madīnah after al-Wansharīsī’s stellar Al-Mi`yār al-Mu`rib. Only what is commonly known as An-Nawāzil as-Sughrā by al-Mahdī al-Wazzānī from Fes (d. 1342 AH), the exact title of which is Al-Minah as-Sāmiyah an-Nawāzil al-Fiqhiyyah, can rightly takes its place beside the said twin towering achievements in the field.
Out of the six published volumes of al-Burzulī’s compilation (Jāmi` Masā’il al-Ahkām li-Mā Nazal min al-Qadāyā bi al-Muftīn wa al-Hukkām), excluding therefore the umbrella volume consecrated to indexes, four are entirely devoted to man-to-man transactions or mu`āmalāt.
At the inception of the most enriching Book of Sales in the said compilation, Imām Abu’l-Qāsim Ahmad al-Burzulī, who lived at a time when issuing fatāwā and living out the Dīn in general were extremely serious and hallowed matters, quoted Ibn ‘Abd as-Salām as stating, matter-of-factly, that knowledge of the reality of sale and akin transactions was an inescapable necessity (darūriyyah) even for minors, i.e. children below the age of puberty. Buying and selling, in fact, is one of the basic human undertakings from an early age.
Who are we to argue with him on that? What are our credentials? Nay, who are we to ignore that simple truth, ostrich-like, and go on prowling about after expunging two-thirds of the fiqh from our somnambulistic lives?
Just to place things in perspective, I will mention a sample of al-Burzulī’s teachers and students, a who’s who of Islamic excellence in both East and West:
Ibn ‘Arafah al-Warghamī, Ibn Marzūq at-Tilimsānī (= al-Khatīb), Ibn Nājī (the writer of the resplendent Ma`ālim al-Īmān), Hāfiz Ibn Hajar al-‘Asqalānī, the mufassir-jurist-Sufi from Algeria ‘Abdur-Rahmān ath-Tha`ālibī, Imām ar-Rassā`, master of the outward and the inward soaked in love for the Prophet, Sallallāhu ‘alayhi wa-Sallam, Hulūlū al-Qarawī, and the gnostic Ibn Zaghdān, whose treatise on audition (Qar` al-Asmā’ bi-Rakhs as-Samā`) is one of the inspiring classical gems in the field.

As for the modern Mauritanian savant Shaykh Muhammad al-Hasan b. Ahmad al-Ya`qūbī al-Jawādī ash-Shinqītī, he asserted in Marām al-Mujtadī min-Sharh Kafāf al-Mubtadī, wherein he elucidated the poem on jurisprudence penned by his co-national Muhammad Mawlūd b. Ahmad Fāl al-Jawādī al-Mūsawī ash-Shinqītī, that the “chapter on sale is one of those chapters one must obligatorily concern himself with. The following has in fact been stressed in Al-Qabas (Judge Abū Bakr b. al-‘Arabī’s commentary of the Muwatta’): “Sale and marriage are two contracts which the world’s continuous functioning is dependent upon. Allah, glory be to Him, has in fact created the human being with an innate necessity for nourishment and a compelling need of women. It is for him that He has created whatever is in the earth, but He has not left him unchecked [a reference to āyah 36 of Sūrah al-Qiyāmah], free to dispose of things as he likes. It is therefore incumbent on every person subject to the judgments of the Law (mukallaf) to learn the aspects of sale and its like he requires to know, and it is then incumbent on him to act by what he has learnt in that connection. He engages in purchase and sale directly if able to do so, failing which through another person who consults with him. He does not rely on anyone who is not familiar with the judgments of the Law in this field of life, nor does he negligently bypass the duty to act in accordance with those judgments” (…)
“The testimony of merchants is inadmissible in courts of law regarding any matter whatsoever until and unless they learn the judgments of the Law on purchase and sale. This is Mālik’s madhhab (i.e. the enshrined ruling which is given effect to by a Mufti or a judge adhering to that school). In other words, such merchants are excluded from testimonial participation in any legal suit, regardless of its subject-matter, be it business or marriage or a criminal offence or inheritance. Another view, held by Ibn Abī Salamah, is to permit them to give testimony in court only as regards the valuation of goods they have in stock, since they possess specific knowledge of their market values. That is what the Mālikiyyah have contended as an exception to the norm, on account of the fact that none but them are acquainted with their valuation (…) ‘Umar (b. al-Khattāb used to send to the markets people entrusted with the task of monitoring the dealings of any trader who was not a faqīh, that is, did not have thorough understanding of the judgments of the Law relating to sale and its like”.

Knowledge of this subject is a must. Action by it is a must. Omission of such imperative disqualifies one from the societal integrity that alone enables him to take part in the procedures of an Islamic justice system.

The word sudan in Sūrah al-Qiyāmah means neglected, without a guardian / shepherd watching over his actions and orientating him: «Does man reckon he will be left to go on neglected and unchecked?».
Apart from the obvious errors of zulm and fisq, the Muslims who have chosen not to shape their actions in the arena of wealth-creation, expansion, collection, distribution and bequeathal, by what Allah has sent down, by His Law, are thus attempting to flee untamed from the Power of the Subduer; to turn into some kind of free-roaming beasts exempted from the obligation to account for their deeds.
If it was left to them (for Allah’s superior design will never be thwarted, and He has guarded His Dīn), Islam would recede into a more or less private spirituality the way collapsing Christianity is rapidly doing.
In the lands of the West or the regions influenced by it, the extent of ignorance amid Muslims about the laws of marriage and sale, the core of man-to-man transactions on which the perpetuation of orderly life on this planet rests, is truly shocking.
It makes no genuine sense that the giant luminaries of the past are quoted and paraded around by Muslims, who pride themselves in association with their names and legacies, but at the same time the representation is made, implicitly at least, that those same luminaries never bothered, spoke or wrote about the mu`āmalāt, when in fact the opposite is correct. Are we gazing at split images, portraits of half-men we imagine to discern in our stupefied condition?
A logical consequence of it is that, as the mu`āmalāt have been turned into a pasture where heedless creatures believing to be unchecked by their Lord graze, whenever some deviant group with an ulterior motive arises (the legalization of usurious modes of transacting; false antithetical campaigns presenting false alternative models thereto), many oblivious Muslims passively acquiesce in its claim to veracity.  

In this brief article, I would like to scoop some ornamental finery from a classical source and a contemporary one.
Muslims who adhere to Mālik’s madhhab and who have an inkling for its fundamental texts will no doubt honour the Mudawwanah for its simple profundity, the Risālah for its distillation of behavioural essences, Ibn Yūnus’s Jāmi` or al-Qarāfī’s Dhakhīrah for its comprehensiveness, Khalīl’s Mukhtasar for its astonishing compactness, al-Lakhmī’s Tabsirah for its novel geniality, Ibn Juzayy’s Qawānīn for its structural lucidity, and ad-Dusūqī’s Gloss for its fastidious attention to detail in the derivative rulings.
Few would however dispute my statement that al-Māzirī’s commentary of Judge Ibn ‘Abdi’l-Wahhāb’s Talqīn (regrettably left incomplete by the author’s death) is the beauty of beauties, the treasure of treasures which no lover of scholarship dives into without emerging from it fresher and more galvanized.
May Allah join us in the Garden with human wonders who had nothing to do with dry scholasticism.
Given present-day Muslims’ disconcerting estrangement from comprehension of simple transactional realities, we would like to join the master from al-Mahdiyyah, Allah’s sign on earth whose family headed originally from the magical island of Sicily, and whose centrality in the firmament of African stars my late teacher Muhammad ash-Shādhilī an-Nayfar did so much to rightfully reinstate, as he answers a question pertaining to the fiqh of currency exchanges.
It comes from the said junction of the ‘Irāqī and Qayrawānī methodological traditions.
In another, more ethereally cybernetic context where I am oddly ascribed to virtuality while virtual products are boisterously passed off as the real thing, I already clarified that by avoiding immediacy in the interchange of currencies, one party pockets more without having done nothing (improvement of the commodity, astute bargaining) to justify such excess, and without having assumed any liability in that regard = ribā. That is so, quite obviously (though the obvious across the past centuries has become something intelligible in our age), because the value of currencies is subject to an element, more or less pronounced, of volatile fluctuation. In our days of gigantic speculative bubbles and trillion-dollar daily trade in forex markets, the degree of volatility is enormous.
Back to al-Mahdiyyah, which we might envisage as an intertwined tapestry of ruling elites and palm trees, sapient jurisprudents and fragrant orchards of human nobility.

3. What is the basis of the juristic accusation leveled at a deferred currency exchange which is not effected hand to hand?   

“The answer to the third question is as follows:
We have previously remarked that the key aspect to consider in this juristic arena is the cogency of a potential accusation that a subterfuge is being deployed so as to carry out something unlawful”.
In other words, humans are humans regardless of the epoch. Especially in their quest for material aggrandizement, a number of them at any given time would tend to circumvent the prohibition of usury.
What changes is whether the leaders of a society, the leaders of command and the leaders of knowledge, that is, permit that to take place with impunity or not.
“We likewise came to understand that a deferred currency exchange is forbidden (muharram).
In the scenario where party “A” sells on credit to party “B” a dress for 100 silver coins, and then the same vendor “A” buys the dress back from “B” cash, by giving gold coins as immediate purchase price, the dress, having been first sold and then returned to him after the sale, turns into an irrelevant intermediary which ought to be discarded from the transactional equation. The end-product of the interaction between “A” and “B”, as emphasized by us many times, is simply this: The dress only came back to the original seller of the commodity, and he only paid cash for it via the gold coins, in order for him to get, as quid pro quo for the gold, some silver coins on deferred terms.
If the said two parties had explicitly conceded that their real agreement consisted in that, it would not have been permissible.
It makes no difference if they refrain from expressly acknowledging that fact and are accused of having actually intended it. They are in any event prevented from carrying out that transaction”.
Who debars them? The Law of Allah does. Diyānatan, therefore, they will always have to account for their unlawful deed, if not in this world in the Next (unless Allah spreads a screening veil over it). After all, He has taught us in Sūrah al-Qiyāmah that man is not some neglected beast left to roam unchecked. If he reckons otherwise, he will have a rude wake-up call on the Day of Rising.
The people enjoined to enforce Allah’s Law, rulers, judges and jurists, hence scholars, imams, teachers, guides and muftis, too, must of necessity preclude the effectuation of such interdicted exchange.
This passage additionally reminds us that cosmetic naming of things and ostensible guises are of no significance: We lift the veil and look at substance and intention, whereupon we eradicate the illegal without pity whichever way it is called.
“It is however possible that the gold coins given in cash exceed in value the silver coins of the deferred purchase price as evidenced by a patent discrepancy to that effect. An example is if party “A” bought back the dress for 100 gold coins after having originally sold it for 100 silver coins.
In that example, any accusation of circumventing the Law would lack intrinsic force, inasmuch as the party who gives the 100 gold coins actually loses out in a big way, in addition to suffering a delay in receiving any such visibly lower price from the other party.
Ibn al-Qāsim allowed such a transaction if it was clear from the monetary value we have envisioned or something in that vein which entails an even greater loss than it, that no one could ever hold against the party who disbursed the gold coins that he was trading in currencies on deferred terms with a view to making a gain.
Ashhab, on the contrary, disallowed it as a form of extraordinary precaution, and due to the fact that the payer of gold coins in our illustrating scenario might be motivated by subtle purposes to engage in profit-seeking trade by exchanging currencies on deferred terms. That would be an instance of protecting the protection (of the inviolable sanctuaries of the Law), himāyah al-himāyah”.
In other terms, dear readers, such was the savants’ conscientious regard for the sanctity of the Law that they might be inclined to err, if at all, on the side of extra caution.
“Just as engrossment in the unlawful (harām) is afforded legal protection (himāyah) whereby its boundaries are safeguarded, it is necessary to afford the same protection to legal protection itself, lest the matter reach a point where the inviolable terrain of the unlawful (harām) is desecrated, and while someone says, ‘This is exempt from any accusation’, someone else adds, ‘This, conversely, is a suspect deed’”.  

It is with nostalgia and reluctance that we heed the request to relocate from redolent boulevards in the Mahdiyyah of yonder to modern Libya and its fractious polity.
Our translation of a passage from Al-Fatāwā az-Zāwiyyah ‘alā Madhhab as-Sādah al-Mālikiyyah by at-Tāhir Ahmad az-Zāwī must be premised by placing the necessary emphasis on the fact that a) ribā is far broader a reality than the concept of recent coinage named fā’idah (interest), and that b) “Islamic” banking is essentially undifferentiated from its conventional sibling, and accordingly offers no way out of usurious dominance.
The passage is a transposition to booklet form of a question and answer which appeared on a magazine called Al-Hudā al-Islāmī [6/November 1975, pp. 78-9]:

QUESTION:
It is a known fact that banks deal in interest, in the sense that they take more than what they give.
Is it permissible for a person to be employed by one of these banks on a monthly salary? Is such an employee allowed to take a share of the profits generated by the bank as a form of bonus allocated to its staff?

ANSWER:
The praise belongs to Allah; and may the prayer of blessing and the salutation of peace be upon the Messenger of Allah.
A human being is not permitted to work as an employee for banks – which deal in interest – and thus certify its transactions. Any such certifier, in fact, is either a clerk who checks the records of usurious transactions in bank registers, or who fills out their details in the relevant bank documents, or who attests their conclusion and clauses.
Whoever records usurious transactions in writing or attests them as a witness is cursed as per the explicit text of a sound Prophetic narration: “The Messenger of Allāh – Sallallāhu ‘alayhi wa-Sallam – cursed the consumer of usury, regardless of whether he is the one who disburses it, writes it down, or witnesses it. He said they were all equally accursed.”
Bank personnel with powers of signature and members of their management structures are in the very forefront of people who attest the purported validity of the relevant usurious transactions and commit them to formal written memorials, since no such transaction would be of any legal effect without their authorizing consent.
The interdiction of usury is a given in Islam which admits no dispute, as it is one of the truths emphatically laid down by Allah’s Book in more than one āyah, which has further been embedded as integral part of the Law by the Sunnah of Allah’s Messenger [Sallallāhu ‘alayhi wa-Sallam]. That is a fact unanimously agreed upon by the Companions and the leaders of the Muslims from the Prophetic age until the current times.
It is a renowned fact that all the wages and salaries paid to bank employees – be they clerks or otherwise – come out of the profits made by banks, which are unlawful since they stem from illegal interest. Everything which stems from the forbidden is itself forbidden. Receipt of the forbidden is as outlawed as the disbursement thereof.
Based on that, the prohibition extends to all the employees in a bank, without differentiating between clerical staff and other staff components, given that all of them without exception receive their remuneration from the illicit profits of the relevant bank.
(Imām) al-Qurtubī explicitly states that the totality of usurious transactions are corrupted by irregularity and thus invalid in law. Consonantly with al-Qurtubī’s view, all the onerous contracts which are stipulated by a bank with its employees and which entail engagement in usury are legally invalid (fāsidah), and are not binding at all on any party thereto.
To the extent that a human being is not allowed to work in a bank in exchange for a monetary consideration, due to the usurious nature of its transactions, he is similarly not allowed to take into his receipt any share of the interest-based profits it allocates to members of staff as bonuses. It would in fact be a share of net usurious gain originated by the very same usurious transactions.
In conformity with the aforesaid, all the banks and corporations which are involved in these usurious transactions are bound by the Law to cancel any contract whereby interest is charged, and to restitute whatever it has received on its strength to the rightful owners of such monetary sums or to their heirs, and in their absence to dispose of them in charity; they have a concomitant right to claim restitution of whatever they have disbursed in the process of executing it. Thereby, effect would be given to Allah’s statement, may He be Exalted: «But if you make tawbah you may have your capital, without wronging and without being wronged» (Sūrah al-Baqarah: 279). In other words, do not wrong people by exacting an excess from them, and do not be wronged by giving an excess over what you have received.
If banks do not abstain from dealing in usury, they should be notified of war from Allah and His Messenger [Sallallāhu ‘alayhi wa-Sallam]. Let them also await the punishment Allah the Exalted has threatened in His words: «Allah obliterates ribā but makes sadaqah grow in value» (Sūrah al-Baqarah: 276)”.

***

The reduction of ribā to bank interest in today’s minimalist fiqh, which is ruled by apology and enervated submission to growing degeneracy, has inter alia resulted in the decoy of “Islamic” banking.
We have likewise observed, however, that dubious systems of currency exchange on the part of self-declared paladins of free trade must be jettisoned at source, exposed and opposed.
Allah is the One Who grants success.


Ustādh Thomas Bradiperr
Alberonia, 25/02/2013

 



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