Fatawa in Islam - Commerce

Q: I have been told that the amount for Sadaqah al-Fitr when one is a follower of the Shafi`i Madh-hab is twice that of the followers of the Hanafi Madh-hab. Is this true? Would you kindly also explain how the amount is arrived at?

A: In the Shafi'iyy madhhab the quantity to be given in sadaqat al-fitr is 1 sa. This is a standard quantity that does not fluctuate for different commodities. In this regard the Shafi'iyy madhhab differs from the Hanafi madhhab, since in the Hanafi madhhab, the quantity is 1/2 a sa for wheat and 1 sa for other commodities such as maize and rice.

Converting the sa into weight:
There exists a further difference between the Shafi'iyy madhhab and the Hanafi madhhab on the weight of the sa. In the Shafi'iyy madhhab the sa is given as 5 1/3 ritl. (This is also the position of Imam Abu Yusuf). Imam Abu Hanifah and Imam Muhammad's opinion is that the sa is 8 ritls. A ritl, according to Imam Nawawi, equals 128 4/7 dirhams; and a dirham is 2,97 grams. Thus:
1 dirham = 2,97 grams
128 4/7 dirhams = 1 ritl = 381,857 grams
381,857 grams x 51/3 = 2036,443 grams = 2,036443 kilograms
therefore 1 say = 2,036 kg

This amount is in accordance with the views of Imam Shafi'iyy, (as well as Imam Abu Yusuf), who hold that the sa is 5 1/3 ritls. According to Imam Abu Hanifah and Imam Muhammad, the sa is 8 ritls, so the conversion will look as follows:
381,857 grams x 8 = 3064,856 grams = 3,064856 kilograms
therefore 1 sa = 3,064 kg
and 1/2 sa = 1,532 kg

Note, however, that the above calculation was done on the basis of Imam Nawawi's view that the ritl is 128 4/7 dirhams. There might well be slight differences in this regard.

There is a common misconception that sadaqat al-fitr for Shafi'iyy is is double the quantity for Hanafis. This is not accurate. Firstly, it is true (though only partially so) when the commodity considered is wheat. For other commodities, such as maize or rice, it would not be true. For maize or rice it would be 1 sa for Shafi'iyys as well as Hanafis.
Secondly, the generalization that "Shafi'iyys have to pay twice the amount Hanafis pay" overlooks the important fact that for Hanafis a sa is 8 ritls, while for Shafi'iyys it is 5 1/3 ritls. For Hanafis 1/2 a sa would be something like 1,5 kg, while for Shafi'iyys 1/2 a sa would be about 1 kg and a full sa would be closer to 2 kg.
It would be more correct to say that where wheat is taken as staple food, Shafi'iyys have to pay 1 1/2 times the amount Hanafis pay (i.e. more than what Hanafis pay), while for commodities other than wheat Shafi'iyys have to pay 2/3 of what Hanafis pay (i.e. less than what Hanafis pay).

Q: We are an Islamic School and wish to raise funds to construct a toilet block. We have been advised to hold a musical show. We are told that Mufti Kifayatullah has given a legal edict that permits the usage of riba [usury] for the construction of toilets. Would the same reasoning apply here as well? Also should we be incorrect in our initial assumption, what if there were no other means to raise funds? Will this be deemed a case of darurah [necessity] and thereby render it permissible?

A: Preamble
Legislation in Islam is based upon the Quraan and the Sunnah. All authority to declare things permissible or impermissible must derive from these two sources, directly or indirectly. For as long as the Quraan or the Sunnah provide guidance on a particular issue there is no need, or rather, it would be unwarranted, to opt for other sources of legislation. The actions of any particular person, no matter how erudite or pious he may be, will have no bearing on the ruling of the Shari'ah, if it does not derive from the Quraan and the Sunnah, or is in contradiction with either of these two.

Click here to download a pdf on the impermissibility of music in Islam.

Personal Reflection
Juristic opinions (fatawa) are usually the means of seeking the judgement of the Shari'ah in exigencies that arise. However, Rasulullah sallallahu 'alayhi wasallam has shown us another, much less complex way to the truth: personal reflection in all sincerity and honesty. He says: "Ask your heart. Good is that with which your soul feels content, with which your heart is at ease. Evil is that which causes uneasiness in the heart and creates agitation in the chest. (Ask your heart) even if the people give you opinions, even if they give you their opinions." If any of us would be asked what he or she thinks about hosting a function of this kind in aid of the masjid, or worse even, within the masjid, I am sure we would recoil in repugnance and horror. Let it be known then, that there is no difference in the Shari;aah between what can be done for the masjid and for our other institutions. Our masajid are the places for our ibadah, but similarly our schools are the centres for the education of our children. No haram funds may go into the upkeep of any of these institutions.

Darurah (necessity) is a principle that has the effect of rendering the unlawful lawful. However, before this principle can be invoked to legalize this venture it must be established beyond all doubt that there are absolutely no other viable alternatives. For as long as such alternatives exist, even though they may not bring in as much funds as a music show would, it will be dishonest and sinful to claim exemption on the grounds of necessity.

Utilization of haram funds
There exists the notion that it is permissible to use funds accrued by way of bank interest towards the construction of toilets, and that the same ruling should consequently be applicable to the case in question, since the funds generated will be used to construct an ablution block. I wish to point out here that this is in fact a grievous misreading or misunderstanding of the fatwa issued by Mufti Kifayatullah of Delhi. It is not correct to invoke the fatwa of Mufti Kifayatullah in this case for the simple reason that there exists a difference in 'illah (ratio legis). In the case responded to by the learned Mufti the source of the funds derived was the general public, without specification of any particular persons, groups, societies or religious denominations. Money paid out by banks as interest derives from the public in this way. The learned Mufti reasoned that since the money derives from the public without any knowledge of to who in particular it belongs to, it must be returned to the public in a similar fashion. For this he devised the plan of building of public toilets in cities like Bombay and Delhi that would be used by the general public (Muslims, Hindus and Christians alike), and cannot be regarded as the exclusive property of any specific group or society. In our case, neither do the funds derive from a source similar to that of Mufti Kifayatullah's fatwa, nor does the area towards which the funds are to be used correspond with that of his fatwa. (The ablution block will be built upon the school grounds, and become part of the school building, both of which is the property of local Muslims.) To invoke the said fatwa is thus incorrect.

Another notion seems to regard the nature of the function of a toilet as sufficient grounds to legitimize the channeling of unlawful funds towards it. Let it be known that in Islam the function of a toilet is far from squalid. Taharah in Islam is regarded as half of faith, and taharah starts in the toilet. The role of the toilet is therefore religious in every sense of the word.

Fatwa and facilitation
It might also be observed that the mufti's role is to facilitate things for the public, and not to make it difficult for them. To this I respond as follows:
The element of taysir (facilitation) in fatwa comes into play in two cases: one, when dire necessity (such as described earlier) calls for the relaxation of prohibition; and two, when the mufti is faced by two or more possible solutions to a problem, both or all of which fall within the sphere of the lawful. In that case he will opt for the easier solution. However, in a conflict between the lawful and the unlawful, of which the case in question is an example, introduction of the element of taysir amounts to nothing less than the arbitrary cancellation of all things prohibited by the Shari'ah. By such a radical step every unlawful thing in the Shari'ah can be rendered lawful. What, I ask, is then the wisdom in prohibiting certain things if every jurist holds arbitrary power over the cancellation of prohibition?

Furthermore, I do not doubt that all of us are acutely aware that we live in times of moral degeneration and bankruptcy, where the little morality that remains is also at a steady ebb. I honestly doubt whether any 'ilm endowed with the qualities of taqwa and fiqh an-nafs (a sociological and psychological appreciation of an issue under scrutiny) could possibly fail to read the implications of opening a door as destructive and obnoxious as that of a music show; not in an age where music is practically synonymous with libertinism.

For all of the above reasons I, with full realization of my responsibility in this regard towards Allah, find that:

It is haram to host such a function;
Funds generated in such a show is haram, and cannot be used for the intended purpose;
It is wajib upon the body that oversees the affairs of the community to ensure that the organization and planning of the function is terminated immediately.

Q: What is the Islamic ruling on copyright? Some authors and publishers spend a great deal of time painstakingly writing books on Islam, and this for them is obviously a means of rizq. Without their permission low quality versions of the same books are published and mass distributed around the world. Shop keepers sell these books at huge profits, justifying this by saying that it's cheaper than buying the original versions. Some 'ulama say all of this is okay because there is "no copyright" in Islam. Please clarify.

A: To state without exception or qualification that there is no copyright in Islam would be to absolutise a position that is not only very relative, but one that also happens to be the view of a minority of scholars.

Copyright: right
Copyright, as its very name indicates, is a right. A right maybe defined as something to which one has a just claim, or a power or privilege to which one is justly entitled. The concept of rights is as well founded in the Shariah as in secular legal systems. There exists, in fact, sophisticated and detailed topologies of rights in the jurisprudence of the Shariah, and there are provisions and regulations that pertain to each category of rights, not all of which would be of immediate relevance in determining the Shar'i status of copyright.
Copyright is one form of what has come to be termed intellectual property. This term denotes the fact that the thing owned is intangible and that it is the product of the mind of its originator. Patents and trademarks are other forms of intellectual property.

Ethical right
The past
It is a fact that in the distant past an owner or inventor's right to his production, though recognized and respected, was not deemed as having a proprietary value. But having said that, it becomes necessary to investigate the reason for not regarding it as commercially exchangeable property. Was this due to its being intangible, or for some other reason? If intangibility and abstractness were the reason, then obviously nothing has happened in history to make the intangible tangible or transform the abstract into something physical, so this kind of right would remain without proprietary value. It appears, however, that the reason underlying the classical view that espouses the non-proprietary nature of such rights was not intangibility or abstractness, but something else something that was definitely affected by developments in history.

In the past, when an author produced a book, copies of it could only be produced through the tedious labour of scribes. The process of producing manuscripts was so arduous that the attachment of a monetary value to the author's right as originator of the book appeared irrational and absurd. Whatever monetary value could have been attached to it was reduced to insignificance by the enormous demands of manual scripting.

Developments in history
But all of this was destined to change with the invention of the printing press and subsequent advances in its development. The painstaking labour of the scribe was soon replaced by the speedy efficiency of the printing machine, and where the production of a single copy hand once upon a time demanded literally hundreds of man-hours, it now became possible to produce hundreds, even thousands of copies within but a few hours. This revolution had one very significant by-product: the author's right that under the previous system had been reduced to insignificance by the demands of manual labour, found the opportunity to reassert itself.(1)

In due time 'ulama would begin to debate the Shar'i validity of the proprietary dimension of copyright and other similar rights.

Mal & 'Urf
A central axis in the debate was the definition of mal, or commercially exchangeable property, in the Shariah. Tangible things within the limits of certain criteria were unanimously accepted as being mal; but when it came to the abstract usufruct (manafi') of tangible entities the fuqaha differed: the majority accepted it as mal while a minority did not. A similar difference of opinion existed on property-related rights (as opposed to rights with no proprietary connection).(2)

In determining what sort of entities hold proprietary status due regard was given to the regulatory and revelatory role played by the juristic principle of 'urf (custom). The very definition of mal as given by classical jurists indicates that it is based to a large extent on the norms prevalent in society.(3)

Al-Suyuti, for instance gives the following two formulas as Imam al-Shafi 'i's definitions of mal: "Anything that may be assumed to have an effect in terms of benefit (naf') would be mal; and anything that does not appear to be effective in the drawing of benefit would on account of its paucity not be mal." Alternatively, "an entity with monetary value would be the kind of thing that acquires value when prices rise; whereas a thing devoid of monetary value would be the kind of thing that does not acquire (such value)."(4)

The words of the Hanafi jurist Ibn Nujaym are even clearer in this regard: "Proprietary status (maliyyah) is established exclusively through the fact that all or most people come to deem [a thing] as property (tamawwul)."(5)

The modern age has seen the introduction of a number of intangible entities that have come to be accepted as mal virtually by consensus. Mufti Taqi Uthmani writes: "The word mal is one of those general (mutlaq) terms for which there is no definition in the Shariah or the [Arabic] language. The task of explaining what it is therefore falls to the 'urf of people. Usufruct (manafi') is one of those things that people have by 'urf come to regard as mal, especially in this age and after the Industrial Revolution. Examples thereof are electricity, or gas, or solar power, which in earlier times were not regarded as property or entities with value due to the fact that they were not tangible entities that existed on their own, and physical possession of them was not possible. But these have now become of the dearest and most valuable forms of property about the sale and purchase of which there is no doubt whatsoever; since they have effectual benefit; it is possible to possess them; and people have by 'urf come to deem them as mal having value. Rights of invention and authorship as well as other intellectual rights are included alongside these."(6)

The manner in which a thing which once upon a time was deemed to have no or negligible monetary value, comes to acquire such value is explained by Dr. Muhammad Sa'id Ramadan al-Buti with the help of a parallel case: A person might be absolutely sure that a piece of land owned by him contains a precious metal deep underneath. Mining and refining would however cost him much more than what he would gain from eventually selling it. As a result the value of the precious metal dwindles into insignificance when compared to the difficulty involved in unearthing it. In such a case it would be correct to say that the ore in its present state does not, for all practical purposes, have a monetary value. When industry and technology eventually advance to the stage where the costs of mining and refining are reduced to a mere fraction of the original costs, the subterranean ore reclaims its monetary value.(7)

The above has been the view of the overwhelming majority of 'ulama who investigated the matter. Husayn ibn Malawi al-Shahrani in a dissertation on rights of invention and invention lists the names of close up to 40 scholars who affirm the Shar'i validity of copyright, as opposed to 4 dissenting opinions.(8)

Dealing with juristic difference
The absence of absolute consensus on the issue, despite the fact that non-acceptance of copyright as a valid form of property is the view of the minority of scholars, means that there will inevitably be those who will opt to follow the minority opinion. How would this affect the rights of others who only desire protection and respect for what they believe to be their Shar'i rights?
Whatever one might want to believe about the phenomenon of juristic differences of opinion, I find it unthinkable that any sane and conscientious person could conceive the idea that the purpose of such differences is opportunism and exploitation. The sanctity of property is one of the highest ideals of the Shariah. It is enshrined in numerous ayat of the Quran. Of particular interest here would be the ayah in which Allah says:

"O you who believe! Do not eat the property of one another in a wrongful manner, except if it be by trade, through your mutual consent." [al-Nisa 29]

The key term in this ayah has been underlined: mutual consent. Consent is only mutual if both parties agree to it.
Let those who prefer to follow the minority opinion restrict their practice to the waiving of their own rights, and restrain their hands from what others, on the basis of a well-founded view in fiqh, regard as their property. Abusing the rights of others on the basis of a view which they themselves believe in whether for capricious purposes or otherwise would be nothing than an utter mockery of the Shariah. Differences of opinion were never intended to defeat the very objectives of the Shariah. A Muslim, after all, is he from whose hands and tongue fellow Muslims are safe.

I conclude with the timeless words with which Sayyiduna Rasulullah sallAllahu alayhi wasallam concluded his address to his Ummah during the Farewell Hajj:

"O people, listen to my words and obey! You must know that every Muslim is the brother of the other and that all Muslims are brothers. Therefore, nothing is lawful for a man except such as is willingly given by his brother. So let there be no injustice amongst you. O Allah, have I conveyed?"

The idea that 'urf has a role to play in the determination of that which is textually undetermined in Shariah is expressed by al-Zarkashi as follows:
The fuqaha say: "Anything brought by the Shariah without limitation, and which has no Shar'i or linguistic defining axiom (dabit) must be governed by 'urf." (al-Manthur fi l-Qawaid vol. 2 p. 391, Wizarat al-Awqaf, Kuwait, 1402/1982)

Al-Suyuti, alAshbah wa l-Nazair p. 327, Mustafa al-Babi al-Halabi, Cairo, 1389.
Ibn Nujaym, al-Bahr al-Rahiq vol. 5 p. 430, Dar al-Kutub al-Ilmiyyah, Beirut, 1418.
Muhammad Taqi Uthmani,"Bay al-Huquq al-Mujarradah" in Majallat Majma al-Fiqh al-Islami no. 5 vol. 3 p. 2384, 1408.

Note should be taken that he records the fact that a number of eminent ulama from the Indopak subcontinent adopted similar positions on the issue. They are Mufti Kifayatullah, Mufti Abd al-Rahim Lajpuri, Mufti Nizam al-Din, the mufti of Dar al-Ulum Deoband, and Mawlana Fath Muhammad, the pupil of Mawlana Abd al-Hayy, both of Lucknow. His own father, Mufti Muhammad Shafi, held a different view, but towards the end of his life instructed his son to reopen investigation on the issue. Unfortunately he did not live long enough to see the results of his son's research.

Qadaya Fiqhiyyah Mu'asirah vol. 1 p. 92.
Another case that presents a parallel of sorts could be the one discussed by many classical fiqh authors: One may not sell a bird flying in the air, but once the bird is captured it becomes a valid form of mal and may validly be sold.

Huquq al-Ikhtira wa l-Talif fi l-Fiqh al-Islami pp. 238-241