Legal maxims and Islamic financial transactions: A case study of mortgage contracts and the dilemma for Muslims in Britain

Zakariyah, Luqman (2012) Legal maxims and Islamic financial transactions: A case study of mortgage contracts and the dilemma for Muslims in Britain. Arab Law Quarterly, 26. pp. 255-285. ISSN 0268-0556(P), 1573-0255(O)

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Abstract

This article aims to focus on legal maxims related to financial transactions to explore whether they offer any solutions for Muslims concerned with this dilemma, and to investigate how such legal maxims can be used to shape the way in which Muslims in the West perceive today’s mortgage issues. Some questions raised are the following. When entering a mortgage contract, does a Muslim’s intention change the ruling of the transaction under the pretext of the two maxims al-ʿumūr bi maqāṣidihā (“matters considered according to intention”) and hal al-ʿibrah fī l-ʿuqūd bi l-maqāṣid wa l-maʿanī aw bi l-alfāẓ wa l-mabānī (“in contracts, is effect given to intention and the meaning or expression and form”)? Can one be certain that mortgages are completely ḥarām (unlawful) when considering the maxim al-yaqīn lā yazūl bi l-shakk (“certainty cannot be repelled by doubt”)? What aspects of ḥarām are found in mortgages and can they be marginalized by the maxim al-ḍarūrāt tubīh al-maḥẓūrāt (“necessity makes the unlawful thing lawful”)? If Islam allows bayʿ al-istiṣnāʿ (contract for manufacture) on the basis of ʿurf (custom), can mortgages also be permitted under the maxim al-ʿādah muḥakkamah (“custom is authoritative”)?

Item Type:	Article (Journal)
Additional Information:	6964/33647 Scopus
Uncontrolled Keywords:	legal maxim; mortgages; Muslims in the UK, intentionality; certainty; doubt; necessity; custom
Subjects:	H Social Sciences > HJ Public Finance K Law > KD England and Wales
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Kulliyyah of Islamic Revealed Knowledge and Human Sciences > Department of Fiqh and Usul al-Fiqh
Depositing User:	Dr Luqman Zakariyah
Date Deposited:	23 Dec 2013 16:19
Last Modified:	23 Dec 2013 16:19
URI:	http://irep.iium.edu.my/id/eprint/33647

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