GENERAL RESOLUTIONS BY INTERNATIONAL COUNCIL OF FIQH ACADEMY

Resolution 47 (9/5)

The International Council for the OIC Fiqh Academy, in its 5th session, held in Kuwait from 1 – 6 Jumaddah Al-ula 1409 AH, corresponding to 10 – 15 December 1988, having reviewed the research presented by the members and experts in the topic of custom, and having listen to the deliberations about it, resolved the following:

1. Urf (custom) is something that people get used to and practised by them. It may or may not be recognized by the Shariah;

2. If an urf is specific, it is enforceable within the domain of those professing it. If it is general, then it is enforceable by all;

3. For an urf to be recognized by the Shariah, it must fulfil the following conditions -

a. It should not violate the Shariah. If an urf violates a divine text or any Shariah principle, it is regarded as a void urf;

b. The urf should be perpetual or occurs frequently;

c. The urf should be in existence at the time of establishing the transaction; and

d. The two contracting parties must not have agreed to the contrary of the urf. If they agreed to the contrary, then the urf is not recognized.

4. It is not befitting for a faqih (Muslim jurist), be he a mufti or judge, to only adhere to what is reported in the fuqaha’s (jurist’s) books, without considering the volatility of the customs.

Resolution 10

The International Council of Fiqh Academy, organized its 2^nd conference in Jeddah from 10 – 16 Rabi’ Al-akhir 1406AH, which corresponds to 22 – 28 December 1985.

After various research papers concerning transactions of modern banks were presented to the Council, and having pondered over the economic destructions caused by this (financial) system, due to its deviation from the directives of the holy book which clearly prohibits interest/usury, be it partial or total, and commands us to seek repentance from it as it (the holy book) also commands us to recover only the capital of the loans without addition or reduction, be it (the loan) small or big, and enjoins us to be mindful of the warnings of Allah and His Prophet, i.e. to wage war against the usurers. The Council resolved the following:

1. The transactions below are considered as riba (usury) and prohibited from the Shariah point of view:

a. Addition or interest charged on extension of debt that has matured, due to default; and

b. Addition and interest charged on a loan, from the beginning of the loan contract.

2. Transactions that conform to Shariah laws are the alternative (to a usury-based transaction) that guarantees financial liquidity and assistance for economic activities; and

3. The Council reiterated their stand, i.e.:

a. Calling upon Muslim governments to encourage the banks (under their respective jurisdictions) to engage in transactions that are in accordance to Islamic laws; and

b. Allowing the establishment of Shariah-compliant banks in every Muslim country, in order to meet the needs of the Muslims, so that Muslims will be able to live in this modern world and at the same time, adhering to their beliefs.

Resolution 141 (15/7)

The International Council of Fiqh Academy, in its 15^th session in Masqat, Oman, which was held from 14 - 19 of Al-muharram 1425AH, which corresponds to 6 – 11 March 2004, having reviewed the research papers that were presented to the Council regarding the topic of al-masalihu al-mursalah, and after listening to the discussions that revolved about it and after considering the ijma’ that Islamic legal rulings are based on ‘acquiring benefits and averting harm’, resolved the following:

1. Al-maslahah al-mursalah is the preservation of the objectives of the Shariah, which is the protection of religion, life, intellect, lineage and property;

2. Maslahah al-mursalah is the maslahah that the Divine Lawmaker did not specifically mention, including the types of maslahah, so as to take it into consideration or nullify it. It is under the general maqasid of the Shariah (objectives);

3. It is compulsory for a faqih (Muslim jurist) to know that there are guidelines for the usage of maslahah, i.e.:

a. The maslahah should be real and not imaginary;

b. It should be wholly and not partial (the maslahah should not be part of an issue but it must be the issue itself);

c. The maslahah should be general in nature and not particular to certain individuals or groups;

d. There should not be another contradictory maslahah, which is more important or of equal importance to the earlier maslahah; and

e. The maslahah must be consistent with the maqasid al-Shariah.

4. The ulama have laid down accurate standards to distinguish between the types of maslahah and how to prioritize them, on the basis of detailing the issues connected with those masalih (singular: maslahah). Thus, the ulama classified them with regard to their connection to the norms of life. It is then arranged in accordance with their order of importance, as follows:

a. The essentials;

b. The needs; and

c. The complementarities.

5. As part of something that is confirmed in fiqh, the management of the affairs of the people by their leader(s) is based on an important consideration, i.e. public welfare. The ummah is bound to obey their leader(s) in that;

6. Maslahah mursalah has broad applications in the affairs of the society, including in economics, social discipline, management, judiciary and others. Thus, from the research presented in this session, we can conclude that the Shariah is perpetual in nature, i.e. its rulings can accommodate the demands of classical times, contemporary times and beyond.