The Islamic Contract And Its Basis Of Maṣlaḥa
One of the regulations established by the community is on how people fulfill their needs by having the goods belong to other people through legal means. Islamic laws have regulated the matter in one of the studies called
Keywords: Islamic Legal StructureIslamic ContractMaṣlaḥāh
Human is known to be social being. It means that they are incapable of living alone. Ibn Khaldun (1332-1406) (2001, p.54) said in his book Muqaddimah that human togetherness is necessary. Thus, many sages stated that men are naturally social being and they should live together. Other experts, Hugo Grotius (1583-1645) and Samuel Pufendorf (1632-1694), suggest similar ideas. As cited by Adji Samekto (2012, p.4), they concluded that human are social being. However, Grotius stated that the community of human beings are reality, not an obligation. Conversely, Pufendorf (1632-1694) affirmed that human must be organized (as a group).
Islam, as a religion, help human to create a community as a proper way to live. The term “group” refers to “ummah” in Quran Surah Ali ‘Imran: 104. In this surah, Allah commands to create ummah to build good social system, where human can suggest one another for the benefit of each other. The concept of togetherness also appears in Quran Surah Al Hujurat: 13. Allah calls through this surah to all human that He created male and female and made us peoples and tribes for one purpose, which is to know one another. Muhammad (Peace be Upon Him), as the messenger of Allah, also ordered his follower to create a community. In Islam, we know it as “jamā’ah.” He said in his hadith:
عَلَيْكُمْ بِالْجَمَاعَةِ وَإِيَّاكُمْ وَالْفُرْقَةَ فَإِنَّ الشَّيْطَانَ مَعَ الْوَاحِدِ وَهُوَ مِنَ الْإِثْنَيْنِ أَبْعَدُ
It means:”you have to remain in jama’ah (congregation) and stay away from disunity for satan (šaiṭān) are closest to one who separates himself from the crowd and farthest from the two of you (jama’ah)” (narrated by Tirmidi, hadith no. 2165) Tirmidzi, 1975 , p.465). These two bases showed us that, indeed, human should live in a community and should be organized in a system that frames their act.
One of the regulation established in the community is on how people fulfil their needs legally. We call this kind of practice as buying and selling. The simplest thing in the practice of buying and selling is human willingness to “get this and that to fulfil my basic needs.” The practice expresses what we want specifically by changing the right of ownership through payment. Thereupon, an agreement exist between the seller and buyer. Islamic law, in one of the studies called mu'āmalah, particularly in the chapter of al buyū’ (selling) and al syirā` (purchasing). Mu’āmalah does not come with an empty concept. Instead, it deliberately benefits human in achieving their goals in the proper ways. Thus, Islamic law bases the concept with the philosophical foundation known as Maqāṣid Al Syarī'ah (Aim of Sharia). This concept, introduced by Syaṭibī in his book magnum opus Al Muwāfaqāt fī Uṣūl Al Syarī'ah, has five purposes, those are (1) protection of faith (religion); (2) protection of soul; (3) protection of mind; (4) protection of descendant; and (5) protection of property (Syathibi, 1997 , p. 17-20). The last purpose is in line with the way human manage their life accordingly. Thus, they achieved their goals without violating other’s needs. Indeed, they benefit each other.
Buyer and seller should perform the agreement or the transaction according to the applicable laws and regulation. Islamic law covers the agreement that becomes a living law, preventing the people to cheat or deceive others for their own benefit. Islam has provided a guidance for such an agreement in the Quran Surah AL Baqarah verse 282, which is also the longest verse in the Quran. The verse provides a protection in terms of financial activity between two parties or more when it encounters a kind of misconduct in the transaction.
In financial activity, it is common that each party benefits from the transaction. The seller will gain his profit from his trade and the customer gets benefits from what he purchased. However, along with the chain of interest, sometimes negligence appears in the contract. The common one is tricking or deceiving, in the past or present time. This shameful act inflicts the financial loss that decrease the community wealth. It is the reason why most of the prophets in the history of Islam preached their community to be fair and truthful in every economic activity. Further, a strict regulation is necessary to reduce or remove economic frauds, thereby allowing each community to access the wealthy condition. Muhammad (PBUH) thought of justice as social utility. Hossein Askari and his colleagues (2015, p.19-20) describe that fairness is the prominent feature in Islamic law, which is conveyed in Quran and Sunnah. Hence, the prophet inserted the truthfulness proposed in both sources to every aspect of human’s activities.
Even though justice becomes the core principle, misunderstanding on the matters often occurs. To understand the financial principles in the perspective of Islam, the philosophical base of a contract need to be elaborated, making it a living law. Again, Hossein Askari explains that the content and the blueprint of Islamic economy derived from three roots. First is the extraction of legal aspect of the Quran and Sunnah to define the ideal Islamic economy and the economic consequences of the two. Second is the review of the sources in modern economy to shape the degree and extent of the gap between institutional framework and Islamic ideal economy. Third is the recommendation on the policies to tie fill the gaps between the two (Askari, Iqbal, and Mirakhor, 2015, p.19). This way, the community will realize the importance of Islamic contract in which it performs to protect the related parties.
From the background and the problem statement, the study is questioning two matters, those are :
What is the structure of Islamic contract?
What is the maṣlaḥa of Islamic contract in human societies?
Purpose of the Study
The paper aims to:
Examine the structure of methodological basis of Islamic contract.
Examine the maṣlaḥa of Islamic contract in human societies.
The paper employs qualitative method. The data were gathered through library research on Islamic law theory, principles, and/or values of sharia, the concept of Islamic contract, and other relevant literatures. This qualitative reading will be from books, journals, papers (published or unpublished), and thesis or dissertation. The study used Uṣūl Fiqh to generate the legal structure of Islamic contract from a valid source of Islamic Law.
The Legal Structure of Islamic Contract
Contract in general term is the agreement between two parties to deliver the rights of ownership or acts between each other. John Downes describes it as (Downes & Goodman, 1998):
Thus, a contract is a legal component to make an agreement about what to do later on. Along with the legality, the agreement between two parties must cover morality aspect as a respect upon the matters of agreement. The parties should not arrange an agreement if they do not share similar purposes or perspectives. In addition, a proficient party should administer the contract.
In Islamic literacy, the term contract is called
The term “contract”, although it could be general kind of agreement, is inclined with financial aspect. Islam has covered the contract in many business activities such as sale (
One of the important sciences of law in Islam is Uṣūl Fiqh. It serves as an instrument to generate and conclude the law. To access the basic structure of Islamic contract, the need of
The legal structure of contract in Islam could be structured as follows:
Structure 1. The Contract as it revealed in Quran.
Quran mentions contract in numerous surah and verse. The very substance of contract recorded in Quran is about instruction to keep the agreement between two parties. QS. Al Māidah: 1 describe the matter: يَأَيُّهَا الَّذِيْنَ ءَامَنُوْا أَوْفُوْا بِالْعُقُوْدِ,, which means: “O ye who believe! Fulfil your compacts”. Another different word is in QS. Al-Isrā`: 34-35:
وَأَوْفُوْا بِالْعَهْدِ إِنَّ الْعَهْدَ كَانَ مَسْؤُوْلاً (34) وَأَفْوُاْ الْكَيْلَ إِذَا كِلْتُمْ وَزِنُوْا بِالْقِسْطَاسِ الْمُسْتَقِيْمِ (35)
It means: “…and fulfil [every] engagement, for [every] engagement will be enquired into [on the Day of Reckoning]  give full measure when ye measure, and weigh with a balance that is straight: that is the most fitting and the most advantageous in the final determination ). Alongside with previous verses, QS. Al Nisā`: 29 reveals the forbidden act of getting treasures illegally:
يَأَيُّهَا الَّذِيْنَ ءَامَنُوْا لاَ تَأْكُلُوْا أَمْوَالَكُمْ بَيْنَكُمْ بِالْبَاطِلِ إِلاَّ أَنْ تَكُوْنَ تِجَارَةً عَنْ تَرَاضٍ مِّنْكُمْ
It means: “O ye who believe! Eat not up your property among yourself in vanities: but let there be amongst you traffic and trade by mutual good-will: nor kill [or destroy] yourself: for verily Allah hath been to you Most Merciful)”.
A further aspect of contract in Quran is stated in QS. Al Baqarah: 282, one and only longest verse in Quran. The narration is as follow:
يَأَيُّهَا الَّذِيْنَ ءَامَنُوْا إِذَا تَدَايَنْتُمْ بِدَيْنٍ إِلَى أَجَلٍ مُّسَمًّي فَاكْتُبُوْهُ وَلْيَكْتُبْ بَيْنَكُمْ كَاتِبٌ بِالْعَدْلِ وَلاَ يَأْبَ كَاتِبٌ أَنْ يَكْتُبَ كَمَا عَلَّمَهُ اللهُ فَلْيَكْتُبْ وَلْيُمْلِلِ الَّذِيْ عَلَيْهِ الْحَقُّ وَلْيَتَّقِ اللهَ رَبَّهُ وَلاَ يَبْخَسْ مِنْهُ شَيْئًا فَإِنْ كَانَ الَّذِيْ عَلَيْهِ الْحَقُّ سَفِيْهًا أَوْ ضَعِيْفًا أَوْ لاَ يَسْتَطِيْعُ أَنْ يُمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهُ بِالْعَدْلِ وَاسْتَشْهِدُوْا شَهِيْدَيْنِ مِنْ رِّجَالِكُمْ فَإِنْ لَمْ يَكْوْنَا رَجُلَيْنِ فَرَجُلٌ وَّامْرَأَتَانِ مِمَّنْ تَرْضَوْنَ مِنَ الشُّهَدَاءِ أَنْ تَضِلَّ إِحْدَاهُمَا فَتُذَكِّرَ إِحْدَاهُمَا الْأُخْرَى وَلاَ يَأْبَ الشَّهَدَاءُ إِذَا مَا دُعُوْا وَلاَ تَسْأَمُوْا أَنْ تَكْتُبُوْهُ صَغِيْرًا أَوْ كَبِيْرًا إِلَى أَجَلِهِ ذَالِكُمْ أَقْسَطُ عِنْدَ اللهِ وَأَقْوَامُ لِلشَّهَادَةِ وَأَدْنَى أَلاَّ تَرْتَابُوْا إِلاَّ أَنْ تَكُوْنَ تِجَارَةً حَاضِرَةً تُدِيْرُوْنَهَا بَيْنَكُمْ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَلاَّ تَكْتُبُوْهَا وَأَشْهِدُوْا إِذَا تَبَايَعْتُمْ وَلاَ يُضَآرَّ كَاتِبٌ وَّلاَ شَهِيْدٌ وَإِنْ تَفْعَلُوْا فَإِنَّهُ فُسُوْقٌ بِكُمْ وَاتَّقُوْا اللهَ وَيُعَلِّمُكُمُ اللهُ وَاللهُ بِكُلِّ شَيْءٍ عَلِيْمٌ
It means: “
From these verses, Quran illustrated the instruction and prohibition in making agreement between each other. The prohibition as it detailed in QS. Al-Nisā`: 29 means that we must not obtain the property by delusive act. It is as explained by Al Zuḥailī, that the assets go to either self-possessions or other belongings. The next word
Other specific contract activity is detailed in QS. Al Baqarah: 282. This verse explains a lot about what we should do when making settlement, in this case is debt: a contract that involves future payment. Generally, there are two instructions in this verse; those are contract writing and providing witnesses. Writing the agreement of non-cash contract is not an obligation, but it is desirable (
Structure 2. The Contract as it thought by Prophet Muhammad (PBUH)
As a prophet, the teaching of Muhammad (PBUH) about Islam famously known as hadith. The teaching consists of what he said, did, or agreed. The hadith itself serves to explain the Quran clearly. There are at least three functions of hadith toward Quran which are agreed by ulama, explicitly: (1) to confirm what already been said in Quran; (2) to describe the Quran more specific and; (3) to show the law that not mentioned in Quran (Sulidar, 2013, pp. 341-346).
Muhammad (PBUH) has taught us about contract and it was recorded in many hadiths. This paper is not going to reveal all of it, but only some of chosen hadith. We could mention it as below:
آيَاتُ الْمُنَافِقِ ثَلاَثٌ إِذَا حَدَثَ كَذَبَ وَإِذَا وَعَدَ أَخْلَفَ وَإِذَا اءْتُمِنَ خَانَ
It means, “The signs of hypocrite are three: (1) whenever he speaks, he tells a lie; (2) whenever he promises, he always breaks it; (3) if you trust him, he proves to be dishonest (i.e. if you keep something as a trust with him, he will not return it.” This hadith describes, as a philosophical base, the principles of having agreement.
الْمُسْلِمُوْنَ عَلَى شُرُوْطِهِمْ
It meansmeans, “Muslims are on (i.e. stick to) their condition”. This hadith affirms the instruction of Quran to fulfil all kind of the agreement. Hence, the dealmaker will uphold the contract until it be accomplished by the two.
أّنَّ النَّبِيَّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ نَهَى عَنْ بَيْعِ الْغَرَرِ
It means that Prophet Muhammad (PBUH) forbade the type of sale which involves risk (uncertainty). The meaning of gharar is the possibility or the doubt. It is the probability whether someone will get the goods or not (Al-Mashri, 2012, p. 175). In another note, gharar is a condition that does not give specific information of the transaction. The famous example is like the sale of birds in the air (Alia, 2015, p.7).
Structure 3. The contract in Islamic scholar consensus
A transaction as an economic event has emerged in daily life: past, present, and future. So, it is agreed upon by all. Islam does not prohibit any kind of mu’āmalāh that has benefits to all mankind. If the activities are not violating the principles of Sharia, the acts are permissible. Indeed, there are two opinions whether the contract is allowed legally by Sharia or illegally. First, the school of Ẓāhiriyah stated that in fact the transaction is not allowed except it has cleared by Islamic texts (i.e. Quran and Sunnah) or ijmā’ (consensus). Second, the majority of Fuqahā viewed that the fact of contract is permissible act, as long as it does not disrupt the law of sharia (Sahroni, 2016, pp. 13-14).
The Maṣlaḥa of Islamic Contract in Human Societies
In daily financial aspect, the prominent note that should be noticed is protecting the property, and surely it has connection of transaction activities. The development of human lives causes the more complex legal problem in society. Thus, it demands the scholars of Islamic law to solve the problems suitably. Holding on to the main sources of Islamic law does not seem enough to jump out of the box. That is why, sharia suggests to not only care of the text sources (i.e. Quran and Sunnah), but also other sources that Quran and Sunnah do not explain scripturally the faced problems. So, using
After outlining the structure of contract in Islam based on the main sources of sharia (i.e. Quran, Sunnah and
The realization of contract as commanded by the Quran and Sunnah will satisfy two sides. Consequently, by completing the transaction, there is social connection between people, leading to the development of trust of each other. This will be the attitude of every dealing in the society.
By gaining the trust, people will realize the need of each other. Thus, everyone will not disturb others through deceptive action. People will get their belongings through the proper means of transaction. Besides, trust will increase the economy of the society, for everyone has no doubt in joining financial transaction with others. Sharia law has regulated the deal. The feeling of needing each other can be called symbiotic mutualism.
The concept of mutualism also develops the concern to protect others’ belongings. It is part of the purposes of sharia law, particularly the protection of property. The carefulness of achieving, having, and spending properties are the forms of self-appreciation on what the people have. As mentioned, Quran recommends the dealmakers to write down the transaction as documented evidence. Along with the writing, they also need the presence of witnesses serving to verify the contract.
The contract as it covered by Islamic law is a transaction that we must honour it. However, we could not ignore that sometimes there are problems occurred in contract, like deceiving, cheating, or any other means that could break or harm the justice. Thus, to prevent the negative acts in the future or in the root of Islamic contract philosophy, the structure of Islamic legal contract has been outlined. Additionally, for the sake of values and ethics, we can generate maslaha (benefit) of contract from the main Islamic sources.
The structure of Islamic legal contract are as follows:
Quranic Base → QS. Al-Nisā`: 29; QS. Al-Māidah: 1; QS. Al-Isrā`: 34-35; Al-Baqarah: 282
Prophetic Base → the notification of the signs of hypocrite; the instruction to hold firm the contract; the prohibition of uncertainty sale
Consensus Base → the majority agreement of Islamic scholars that mu’āmalāt is principally permissible by sharia with a notice when it does not disrupt the principles of sharia law
In addition, the maslaha of contract is gained by understanding QUranic and Prophetic view of transaction as well as by applying the custom of transaction. Several efforts to generate maslaha of contract include gaining the trust of each other, creating symbiotic mutualism, and building the awareness of property protection. These points of maslaha are not limited to those three. This paper serves as preliminary to the analysis of Islamic contract through Usul Fiqh. Therefore, future research of philosophical base of Islamic legal contract is necessary.
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VolumeEpSBS / Volume 52 - ILC 2017