By Mufti Muhammad Taqi Usmani
The Historic Judgement on Interest para 119 – 131
119. The first assumption which takes zulm as the basic illat of the prohibition of riba is in fact based on confusing the Illat with the Hikmat of a prohibition. It is a well settled principle of Islamic jurisprudence that there is a big difference between the Illat and the Hikmat of a particular law. The Illat is the basic feature of a transaction without which the relevant law cannot be applied to it, whereas the Hikmat is the wisdom and the philosophy taken into account by the legislator while framing the law or the benefit intended to be drawn by its enforcement. The principle is that the application of a law depends on the Illat and not on the Hikmat. In other words, if the Illat (the basic feature of the transaction) is present in a particular situation while the Hikmat (the wisdom) is not visualized, the law will still be applicable. This principle is recognized in the secular laws also. Let us take a simple example. The law has made it compulsory for the vehicles running on the roads to stop when the red street light is on. The Illat of this law is the red light, while the Hikmat is to avoid the chances of accidents. Now, the law will be applicable whenever the red light is on; its application will not depend on whether or not there is an apprehension of an accident. Therefore, if the red light is on, every vehicle must stop, even though the roads of both sides have no other traffic at all. In this particular case, the basic wisdom (hikmat) of the law is not discernable, because there is no apprehension of any accident in any way. Still the law will be applicable in its full force, because the red light which was the real Illat of the law is present. To cite another example, the Holy Qur’an has prohibited liquor. The Illat of its prohibition is intoxication but the Hikmat of this prohibition has been mentioned by the Holy Qur’an in the following words:
إِنَّمَا يُرِيدُ الشَّيْطَانُ أَنْ يُوقِعَ بَيْنَكُمُ الْعَدَاوَةَ وَالْبَغْضَاءَ فِي الْخَمْرِ وَالْمَيْسِرِ وَيَصُدَّكُمْ عَنْ ذِكْرِ الله وَعَنِ الصَّلَاةِ ۖ فَهَلْ أَنْتُمْ مُنْتَهُونَ
The Satan definitely intends to inculcate enmity and hatred between you by means of liquor and gambling, and wants to prevent you from remembering Allah. So would you not desist? (5:91)
120. The philosophy of the prohibition of liquor and gambling given by the Holy Qur’an in this verse is that liquor inculcates enmity and hatred between people and it prevents them from remembering Allah. Can one say that he has been using liquor for a long time but it never resulted in having enmity with anyone, and therefore, the basic Illat of the prohibition being not present, he should be allowed to use liquor? Or can one reasonably argue that drinking wine has never prevented him from offering prayers at their due times, and therefore, the basic cause of prohibition mentioned by the Holy Qur’an being absent, the drinking should be held as permissible. Obviously, no one can accept these arguments because the enmity and hatred referred to by the Holy Qur’an in the above verse is not intended to be the Illat of the prohibition. It simply spells out some bad results which the liquor and gambling often produce. They have been mentioned as a Hikmat and the philosophy of the prohibition, but the prohibition itself does not depend on these results. It is in the same way that after prohibiting the transaction of riba, the Holy Qur’an has mentioned the Zulm as a Hikmat or a philosophy of the prohibition, but it does not mean that prohibition will not be applicable if the element of Zulm appears to be missing in a particular case. The Illat (the basic feature) on which the prohibition is based is the excess claimed over and above the principal in a transaction of loan, and as soon as this Illat is present, the prohibition will follow regardless of whether the philosophy of the law is or is not visible in a particular transaction.
121. Another point worth mentioning here is that the Illat of a law is always something determinable by hard and fast definition which leaves no room for a dispute as to whether the Illat is or is not available. Any relative term which is ambiguous in nature cannot be held to be the Illat of a particular law because its existence being susceptible to doubts and disputes, it would defeat the very purpose of the law. The Zulm (Injustice) is a relative and rather ambiguous term the exact definition of which is very difficult to ascertain. Every person may have his own view about what is or what is not Zulm. All the disputing political and economic systems of the world, in fact, claimed to abolish Zulm, but what was regarded as Zulm in one system has been held as justified in another. The communist theory of economy is of the firm view that the private property in itself is a Zulm, while the capitalist theory asserts that abolishing private property is the zulm. Such an ambiguous term is not competent to be the Illat of a particular law.
122. Mr. Khalid M. Ishaque, advocate, who appeared as a juris-consult in this case, adopted another approach. According to him, non-availability of a hard and fast definition of ‘zulm‘ or riba should be taken as a blessing from Allah, for it provides elasticity to the Muslims of every age to determine what is zulm in the given situations of their time. In his written statement the learned juris-consult has expressed himself in the following words:
a) Misdirected efforts towards definition-making ought to be discontinued. Absence of definition of riba in the Qur’an should be accepted as such and rather be looked upon as a mercy for mankind. The deliberate omission of a rigid definition would propel Muslims to come up with their own guiding and evolving principles of identifying zulm in space-time situations. Economic conditions are not static and nor are human situations.
b) A sound economic policy ought to include “all purposeful governmental action whose actual and professed primary objective is the improvement of the economic welfare of the whole population for which government is responsible, not of some segment of that population.” The Islamic concept of economy is not inimical or dissimilar to the above. As such, an Islamic approach should neither be insulated and detached from an economistic approach/program nor should it be in ignorance of the same as they need not be mutually exclusive.
Jurists should not close their mind to the possibility that both can be synergized to arrive at the most beneficial and fair outcome. Very typically, whenever Muslim jurists have not kept themselves abreast with or informed of contemporary disciplines (economics is a case in point), they have a tendency to become averse to it, treat it with suspicion, regard it as a hazard and simply label it as un-Islamic to avoid study of the same.
123. We paid due consideration to this approach, but with due respect to the learned juris-consult, this argument seems to overlook some fundamental points:
124. Firstly, the learned juris-consult has taken the deliberate omission of a rigid definition of riba (by the Holy Qur’an) as a mercy for mankind. This argument appears to presume that the Holy Qur’an normally gives definitions of the acts prohibited by it, but in the case of riba the Holy Qur’an deliberately omitted to give a rigid definition. The fact, however, is that the Holy Qur’an has hardly given a legal definition to any one of its prohibitions. No definition is given for khamr (liquor), nor forqimar (gambling) nor for zina (adultery or fornication) nor for theft, nor for robbery, nor for kufr. Similarly the Holy Qur’an did not define its imperatives like Salat, Sawm (fasting), Zakah, Hajj or Jihad. Should we, then, say that none of these concepts has a specific meaning and all these injunctions are therefore subject to ever-changing whims based on “space-time situations”? The Holy Qur’an, in fact, did not give legal definitions to these concepts because their meanings were too obvious to need an express definition. Some ancillary details of these concepts might have not been so clear and might have given rise to differences of opinion, but it does not mean that the basic concept of all these injunctions has been floated in void or vacuum, having no specific sense at all.
125. Secondly, the learned juris-consult has succinctly outlined the basic features of a sound economic policy in the italicized portion of the above extract. One can hardly question its soundness. Almost all the economic systems claim to strive for the same objectives, but the question is how to achieve them? It is the answer to this very question that has divided different economic systems into conflicting rivals. The learned juris-consult suggests that “Islamic approach should not be insulated and detached from an economistic approach/program.” The suggestion seems to be substantially reasonable, but when this suggestion is given in the context of leaving the definition of riba unsettled and “evolving principles of identifying zulm in space-time situations” it apparently means that it is the pure economic approach which will play a decisive role in identifying zulm in a particular situation and in turn determining what is halal or haram in Shar’iah. Once it is taken for granted, the question is “which economic approach”? There are numerous theories, conflicting with each other, but each one of them pretending to race towards the sound economic policy of “improving the economic welfare of the whole population.” The basic economic goals of a welfare economy are recognized by almost everyone thinking on economic subjects. However, it is the strategy for translating these objectives into reality that makes a big difference. The Islamic strategy to achieve these goals is neither too narrow to accommodate the ever-changing needs of the humanity or too biased to interact with the modern thought, nor is it too dependent on the modern theories to make its own way towards these goals. Islam has no problem in welcoming any constructive suggestion from whatever quarter it may have come, but at the same time it has its own principles on which no compromise is possible, because they are based on divine guidance, the most distinct feature of the Islamic economy that draws the line of difference between the Islamic and secular economies – and the prohibition of riba is one of those basic principles. To leave this principle at the mercy of the secular economic policies is, therefore, like placing the cart before the horse.
126. Thirdly, abolishing zulm (injustice) is not the hikmat or purpose of the prohibition of riba alone. It is the reson’ detre of most of the Islamic injunctions relating to business and trade. But whenever the Holy Qur’an and Sunnah gave a specific command or prohibition in these areas, they did not rely on the rational assessment of the people, nor did they leave these transactions at the mercy of human reason to decide whether or not they have an element of Zulm. If the Holy Qur’an and the Sunnah intended to entrust such a decision to the human intellect alone, they would have not revealed such a long list of commands and prohibitions; they would have rather issued one single command that all people must avoid zulm in all their transactions. But the Holy Qur’an and Sunnah were cognizant of the fact that human reason, despite its wide capabilities, cannot claim to have unlimited power to reach the truth. After all, it has some limits beyond which it either cannot properly work or may fall prey to errors. There are many areas of human life where “reason” is often confused with “desires” and where unhealthy instincts, under the garb of rational arguments, misguide the humanity and demonstrate the unjust attitudes in the disguised form of justice. It is these areas where human reason needs the guidance of divine revelation, and it is the divine revelation which finally decides as to which human attitude actually falls within the limits of “zulm” or injustice, even though it appears to be just in the eyes of some secular rationalists, and it is in such issues that the divine revelations come with a specific command that prevails upon the rational arguments advanced by differing opinions. That is exactly what happened in the case of riba. The secular rationalists were fully content with their belief that riba transactions practiced by them were quite justified, because the income they earn through interest is very similar to the profit they earn through sales. That is why they confronted the prohibition of riba by their rational argument quoted by the Holy Qur’an in the following words:
إِنَّمَا الْبَيْعُ مِثْلُ الرِّبَا
Sale is nothing but similar to riba. (2:275)
127. They intended that if a profit claimed in a transaction of sale is just and lawful, there is no reason why an interest claimed in a transaction of loan is held to be unjust and unlawful. In answer to this argument of theirs, the Holy Qur’an could have mentioned the difference between interest and profit in pure logical manner, and could have explained how the profit in a sale is justified while the interest is not. The Holy Qur’an could have also spelled out the evil consequences of riba on the economy. But this line of argument was intentionally avoided, and the brief and simple answer given by the Holy Qur’an was:
وَأَحَلَّ الله الْبَيْعَ وَحَرَّمَ الرِّبَا
Allah has allowed the sale and has prohibited interest. (2:275)
128. The hint given in this verse is that the question whether these transactions have an element of injustice is not left to be decided by human reason alone, because the reason of different individuals may come up with different answers and no absolute conclusion of universal application may be arrived at on the basis of pure rational arguments. The correct principle, therefore, is that once a particular transaction is held by Allah to be haram, there is no room for disputing it on the basis of pure rational argumentation because Allah’s knowledge and wisdom encompasses all those points which are not accessible to ordinary reason. If the human reason was fully competent to reach the correct decision unanimously in each and every issue, no divine revelation would be called for. There is a wide area of human conduct in which the Creator did not give a specific command. It is this area where human reason can well play its role, but it should not be burdened to play the role of a rival to the express divine injunctions.
129. The Qur’anic verse referring to zulm (Injustice) in the context of riba should be studied in this perspective. The exact words of the verse are:
وَإِن تُبْتُمْ فَلَكُمْ رُءُوسُ أَمْوَالِكُمْ لَا تَظْلِمُونَ وَلَا تُظْلَمُونَ
And if you repent (from claiming riba), then you are entitled to get your principal back. Neither you wrong nor be wronged. (2:279)
130. Before referring to zulm, the Qur’anic verse has laid down the precise principle that no one can be deemed to have repented from the practice of riba unless he has withdrawn from claiming any additional amount over and above the principal, but on the other hand he is fully entitled to get back his principal, and his debtor is bound to pay him the full amount of loan. If the debtor will not pay the principal, he will be committing injustice against the creditor, and if the creditor will claim something more than the principal, he will be committing injustice to the debtor.
131. Thus the Holy Qur’an did not leave it to the assessment of the parties to decide what is injustice and what is not. Instead, the Holy Book itself has precisely decided what is injustice for each one of the two parties in a transaction of loan. Therefore, the notion that the permissibility of different transactions of interest should be judged on the basis of human assessment is tantamount to defeating the very purpose of the revelation and is not, therefore, acceptable.