Zakariyah, Luqman (2014) Harmonizing legality with morality in Islamic banking and finance: a quest for maqāṣid al-Sharī‘ah paradigm. In: The 5th International Conference on Islamic Jurisprudence in the 21st Century 2014 (ICIJ 2014), 23rd -25th Sept 2014, Gombak, Kuala Lumpur. (Unpublished)
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Abstract
In recent times, scholars on the Islamic Finance Industry (IFI) have been calling for integrating Islamic moral norms with legal theory in the industry. Among reasons for this call are unethical trends in product innovation and execution of the industry. Implementing Islamic banking and financial practices would require adopting their undergirding Islamic legal and moral frameworks. Departing from these foundations of Islamic law could render the activities conducted under its name religiously unacceptable, and thus perhaps philosophically problematic. Many approaches have been put forward to achieve this course. One of the most complex but yet subjective approaches is the quest for maqāṣid al-Sharīʿa. This paper aims to critically examine the feasibility of harmonizing morality with legality in Islamic finance. In doing so, it will reveal what constitutes morality and legality in Islamic legal theory, and re-examine the approaches of Muslim classical scholars in fusing the two elements together for realization and actualization of the very objectives of Shariʿa. Questions of relationship between morality and legality raised, and samples of Islamic finance products are evaluated to dig out their moral and legal dimensions. Lastly, the role of maqāṣid al-Shariʿa in harmonization is presented with some observations and reservations on the practicality of their implementation.
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