The industry should not lose sight of the fact that Shari'ah scholars are our current day mujtahid (Jurist). Throughout the history of Islamic jurisprudence, the use of human reasoning (ra'y) has played an important part in the development of Islamic Shari'ah. When issuing fatawa, Shari'ah scholars are practising ijtihad and they should enjoy complete freedom in their practice of ijtihad; their guidance and limitations should only come from the five sources of Islamic Shari'ah being:
- Qur'an (the holy book revered by Muslims);
Sunna (the practice and traditions of the prophet Muhammad (peace be upon him);
- Qiyas (a comparison, used to make a judgement on issues which have no clear-cut ruling in the Qur'an or the Sunna, by consideration of similar issues which do have clear ruling);
- Ijtehad (the diligent judgement of the scholars through reasoning and logic); and
- Ijmaa (a consensus or agreement used for issues which require Ijtehad).
However, we would support supervision of Shari'ah scholars such as the new proposed rules of the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) to reduce the risks of conflicts of interest or improper disclosure. This type of supervision may lead to more transparency and benefit the authenticity and credibility of both the industry and the Shari'ah scholars.
Another form of welcomed supervision is training and accreditation at an early stage and before a student of Islamic Shari'ah becomes a self-proclaimed Shari'ah scholar. Organizations such as AAOIFI should run training and continuing education programs for would be Shari'ah scholars. Such programs should aim to provide Shari'ah scholars with an understanding of various financial and business transactions and the legal framework in which such transactions are being consummated. Most importantly, these training and continuing education courses should train Shari'ah scholars to be inquisitorial of the intention (niyya') behind the transaction.
We should not exaggerate the required finance and business expertise of Shari'ah scholars. After all we do not want them to be bankers or lawyers. Therefore being inquisitorial should be the most important part of their training: they should ask critical questions in order to reach the true niyya' of the parties involved (as judges would try to search for the factual truth in a legal proceeding).
Jawad I. Ali, Omar Salah
source : Zawya