Fiqh as it is

Finally, fiqh shall be accompanied with the objectives of Sharia and economic analysis. Looking at the different opinions amongst muslims scholars on the innovative products which are considered as sharia compliance products such as bay inah, tawaruq, commodity murabahah, bay dayn, etc., we cannot deny that the essence of fiqh is different opinions (ikhtilaf).

The discussion of fiqh tends to be a legal formal approach which means form over substance. As consideration let’s take bay inah product. According to Shafii school of thought, the product is valid as long as it fulfills the pillars of the contract namely contracting parties, offer and acceptance, and subject matter. Vice versa, according to the rest of the school of thought, the contract is invalid because its motive is illegal which means a legal trick (hillah) to accommodate the mechanism of lending and borrowing through the selling and purchasing mechanism. Another relevance example is bay al dayn. According to muslim scholars which are hired by Central Bank of Malaysia, selling the debt at discount price is valid, because the debt represents the property. In other continent, the muslim scholars in Middle east argue that we cannot sell the debt at any price, because the debt represents money. Thus, the transaction of money exchange must strictly follow the rules of equal in value and hand to hand which means on the spot. If the exchange of currency does not follow the rules then the different value which is created from that transaction is categorized as riba al buyu which is prohibited from the Islamic point of view. Why this ikhtilaf takes place, we can simply say that the way they interpret the debt are differ. For muslim scholars in Malaysia, the debt represents property. Vice versa, the muslim scholars in middle east say that the debt represents money. As a logical consequence, the implication and the treatment of that opinions are different.

There’s interesting framework that we can use to make a judgment whether the transaction or the contact is using the correct thing to secure the objective of Sharia or not. This approach introduced by Prof. Iraj Toutouchian oh his remarkable book which is titled of Integrating Money into Capital Theory. When we consider that money is not commodity then we must realize that Commodity-Money-Commodity (CMC) represents the money as medium of exchange. But when we consider Money-Commodity-Money (MCM), then the result will be the money is commodity. Meaning to say that, the commodity is a tool in creating money that can lead to the additional motive of money which is speculative in nature. Let’s we use this framework to screen the commodity murabahah product. The nature of commodity murabahah is not to involve in real trading activities but more to get a cash as a liquidity requirement. Hence, we can say that the product follows Money-Commodity-Money (MCM). By explanation, the commodity has used to generate money. For this condition, the commodity is transformed to be a tool to get cash money in the form of trading contract.