State Laws and Shar??ah Compatibility: Methodological Overview and Application to Financial Laws
State Laws and Shar??ah Compatibility: Methodological Overview and Application to Financial Laws
Habib Ahmed
Abdulazeem Abozaid
Abstract: This article develops a framework of assessing Shar??ah compatibility of laws promulgated by the state from Islamic perspectives by revisiting the concept of siy?sah shar?iyyah (state law), examining the typology of Islamic law, and using relevant Islamic legal methodologies. We distinguish between the notions of Shar??ah compliance and Shar??ah compatibility of laws. Linguistically, compliance means fulfilling Shar??ah principles and compatible implies no conflict with Shar??ah principles. However, the qualitative difference between the two concepts lies in terms of the degree of canonicity and the Islamic legal method used in their derivation. While compliance has direct links with Shar??ah texts, compatibility is endorsed by Shar??ah implicitly based on fundamental maxim of ma?la?ah that governs Islamic laws. The conditions under which new statutes can be considered Shar??ah compatible include identifying the new laws as non-textual, applying the principle of permissibility, and providing additional screening of promoting welfare (maslahah) and avoiding harm. Furthermore, to provide legitimacy to a statute enacted by the state a Shar??ah body may have to endorse it to be Shar??ah compatible after assessing that the principle of permissibility and maxim of maslahah are appropriately applied. The approach outlined in the article attempts to revive the notion of siy?sah from Islamic legal history that provides a framework of conjoining laws promulgated by the sovereign with Shar??ah. While the article applies the framework to assess some of the financial laws that govern Islamic finance as examples, the proposed framework can be used more broadly to assess the Shar??ah compatibility of state laws and regulations that do not originate from Islamic texts.

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