The first of these justifications is that bank transactions are a modern form of transaction that was completely unknown to previous fuqahāʾ, as some people say.
The purpose of such a statement is to take the topic out of the purview of the texts and place it within the scope of juridical reasoning (ijtihād), so that it is easy to say that it is permissible in the name of ijtihād, making matters easier and reviving the faith by bringing it up to date.
It is a statement that is inaccurate and incorrect, for
indeed this transaction was known before the advent of Islam. The only thing
that is new is the outward form and the name, i.e. the building and the
employees inside, the title “bank” written on the front and the word “interest”
or “return” or “rate” used to cover the usury. As for the essence, the subject
matter that takes place inside the building, it is the borrowing of cash and
lending it with a surplus. It was known in the Age of Ignorance (al-Jāhiliyyah) before the advent of
Islam. Imam Abū Bakr ar-Rāzī al-Jaṣṣāṣ says in his Qurʾānic commentary Aḥkām al-Qurʾān, ‘the usury that the
Arabs knew and practiced was the lending of dirhams and dinars for a specified
period of time with a surplus added to the amount borrowed according to what
both parties agree upon.’[1]
As-Suddī says regarding the reason behind the revelation of the Exalted’s
statement:
)يَٰٓأَيُّهَا
اَ۬لذِينَ ءَامَنُواْ اُ۪تَّقُواْ اُ۬للَّهَ وَذَرُواْ مَا بَقِيَ مِنَ اَ۬لرِّبَوٰٓاْ
إِن كُنتُم مُّومِنِينَۖ(
“You who believe! Have taqwā of Allah and forgo any remaining usury if you are believers” [al-Baqarah 2:278],
‘This was revealed with regards to al-ʿAbbās ibn ʿAbdul Muṭṭalib and Khālid ibn Walīd. They were partners in al-Jāhiliyyah and they would lend money usuriously. Islam came and the two of them had vast wealth from usury, so Allah sent down this verse.’[2] The Prophet, may Allah bless him and grant him peace, said, {Indeed, every usury from the usury of al-Jāhiliyyah has been abolished, and the first usury that I abolish is the usury of al-ʿAbbās ibn ʿAbdul Muṭṭalib.}[3] Ibn Ḥajar said, ‘A person in al-Jāhiliyyah would give money to someone else for a specified period of time on the basis that every month he would take a certain amount while the principal remained as it was. When the time had passed he would reclaim the principal from him and if he was unable to pay it, extra time would be granted and there would be more monthly payments.’[4] Fakhr ad-Dīn ar-Rāzī said, ‘As for the usury of credit, it is a matter that was well-known and customary in al-Jāhiliyyah. They would give money on the basis that every month they would take a specific amount while the principal remained unchanged. When the specified time had passed, they would reclaim the principal from the borrower. If he was unable to pay it, extra time would be granted and there would be more monthly payments.’[5] This is the usury that they traded in al-Jāhiliyyah and it is exactly the same as bank transactions. The customer gives his money to the bank for periods of time that are agreed upon and every month he claims set amounts while the principal remains unchanged.
Sheikh Kanūn said, ‘This kind is well-known amongst people today and it happens frequently’.[6]
Likewise, giving money to someone who is going to invest it for a share of the profit, or the worker getting a fixed fee while all the profit goes to the owner of the money, this was also known and the Messenger of Allah, may Allah bless him and grant him peace, went out and traded with Khadījah’s money, may Allah be pleased with her, before he married her.[7]
Likewise, depositing money in a current account was also known to the Muslims early on, for az-Zubayr ibn al-ʿAwwām, may Allah be pleased with him, would have people come to him with monetary deposits for him to safekeep on their behalf. He refused to accept them unless it was on the condition that they be a debt that he was liable for, for fear that he would lose them, as has been narrated by al-Bukhārī.[8]
It is thus apparent that the statement that bank transactions are a new sort of transaction that was hitherto unknown is incorrect, because what is relevant is the substance and not the form, and matters are according to their objectives, as the scholars of jurisprudence (uṣūl al-fiqh) say. Yes, after the coming of Islam, lending with a surplus was declared unlawful, and muḍārabah[9] with a fixed share hid these transactions from the Islamic society that was adhering to Allah’s Revealed Law. This was until they emerged with the appearance of colonialism and adopted new names that allowed them to deceive some people and put doubts in the minds of others who were incapable of penetrating their depths and knowing their reality, which is that it is undoubtedly lending and borrowing with a surplus and that it is the very same usury that Allah and His Messenger declared unlawful and cursed the one who consumes it, the one who feeds it, the one who writes it down, the one who witnesses it, the one who assists in it and the one who calls to it.
The second justification is that they say, ‘There is no clear text in the Book of Allah or the Sunnah of His Messenger, may Allah bless him and grant him peace, that declares this transaction unlawful.’
Like the one that precedes it, this statement is also inaccurate and incorrect for the following reasons:
First of all, it shows disavowal of scholarly consensus (ijmāʿ) and other sources of legislation and confines all legislation to the Book and the Sunnah. In fact, those who make this statement are not even convinced of implicit indications in both the Qurʾān and the Ḥadīth. This is ẓāhiriyyah that is more intransigent than the original ẓāhiriyyah,[10] those rejected by the erudite scholars.
Secondly, we can say yes, there are clear texts in the
Book and the Sunnah that forbid this transaction and declare it unlawful. As
for the Book, there is the Exalted’s Statement:
)وَأَحَلَّ
اَ۬للَّهُ اُ۬لْبَيْعَ وَحَرَّمَ اَ۬لرِّبَوٰاْۖ(
“But Allah has
permitted trade and forbidden usury.” [al-Baqarah 2:275] There is also His
statement:
)يَمْحَقُ
اُ۬للَّهُ اُ۬لرِّبَوٰاْ(
“Allah obliterates
usury.” [al-Baqarah
2:276]
There is also His statement:
)يَٰٓأَيُّهَا
اَ۬لذِينَ ءَامَنُواْ لَا تَاكُلُواْ اُ۬لرِّبَوٰٓاْ أَضْعَٰفاٗ مُّضَٰعَفَةٗۖ(
“You who believe! Do not
feed on usury, multiplied and then remultiplied.” [Āl ʿImrān 3:130]
There is also His statement:
)اَ۬لذِينَ
يَاكُلُونَ اَ۬لرِّبَوٰاْ لَا يَقُومُونَ إِلَّا كَمَا يَقُومُ اُ۬لذِے يَتَخَبَّطُهُ
اُ۬لشَّيْطَٰنُ مِنَ اَ۬لْمَسِّۖ(
“Those who practise
usury will not rise from the grave except as someone driven mad by Shayṭān’s
touch” [al-Baqarah
2:275]
And there is His statement:
)اُ۪تَّقُواْ اُ۬للَّهَ
وَذَرُواْ مَا بَقِيَ مِنَ اَ۬لرِّبَوٰٓاْ إِن كُنتُم مُّومِنِينَۖ(
“Have taqwā of Allah and forego any remaining usury.” [al-Baqarah 2:278]
In the Arabic language, ribā means increase, and in the Revealed Law it means the increase
on one of two things being exchanged without any compensation. There is no
doubt that the bank pays one hundred and reclaims one hundred and ten, for
example, when it is the lender, and it receives one hundred from the depositing
customer and gives him back one hundred and ten when it is the lender, even if
it only calls it a deposit.
And we observe the principles of jurisprudence, which
state:
-
Singular nouns that have
the definite article (al) indicate
universal applicability.
-
The universal (al-ʿāmm) is understood to indicate
universal applicability until there is something that makes it particular.
-
The universal indicating individuals is an indication of conformity, every individual therein
bearing the same ruling in conformity, whether in affirmation or negation.
-
The indication of
conformity is by way of something clearly articulated according to the scholars
of jurisprudence.
-
The general indicating
every individual from amongst its individuals is a decisive indication
according to the Ḥanafīs, and it has the rank of the specific (al-khāṣṣ) in its indication of its individuals.
What we gather from all of this is that the verses of usury indicate that bank interest is unlawful and they indicate it clearly because they comprise it decisively, because it is the increase on one of two things being exchanged without any compensation, and thus it is included within the generality of usury. This is why the scholars say, ‘the universal indicates the ruling in general and in detail as long as it is not made particular by some evidence.’
An example of this is very often found in the ḥadīths about usury, such as the ḥadīth: ‘The Messenger of Allah, may Allah bless him and grant him peace, cursed the one who consumes usury, the one who feeds it, the one who writes it down and the one who witnesses it.’[11]
And there is the ḥadīth: {Beware of the sins that are not forgiven; taking something secretly, for whoever takes something secretly brings it on the Day of Standing, and the consumer of usury, for whoever consumes usury is resurrected on the Day of Standing as a fumbling madman.}[12]
And there is the ḥadīth: {Usury is ninety-nine doors, the least of which is like a man approaching his mother}[13] and the ḥadīth: {Usury is seventy parts, the least of which is a man having sex with his mother.}[14] There are others and they also comprise bank interest, as is indicated by conformity, and clearly so. If we observe the abovementioned principles of jurisprudence, are these people going to wait until they find in the Qurʾān and the Sunnah the expression, ‘bank interest is unlawful’ before they become convinced that the Qurʾān and Sunnah contain a clear text declaring it unlawful?
Is not the aforementioned from al-Jaṣṣāṣ, as-Suddī and
others sufficient in proving that usury was known to the Arabs and that it is
lending with a surplus, and that the Exalted’s statement:
)يَٰٓأَيُّهَا
اَ۬لذِينَ ءَامَنُواْ اُ۪تَّقُواْ اُ۬للَّهَ وَذَرُواْ مَا بَقِيَ مِنَ اَ۬لرِّبَوٰٓاْ
إِن كُنتُم مُّومِنِينَۖ(
“You who believe!
Have taqwā of Allah and forgo any remaining usury” [al-Baqarah 2:278] came down regarding
lending with a surplus, and that the jurisprudential principle that the
illustration of the reason (sabab)
makes it decisively general and cannot be made particular through juridical
reasoning (ijtihād), as is stated by
the scholars of jurisprudence? This means that the lending with a surplus that
is practised by the bank, in both giving and taking, in the name of interest or
return or whatever else, is the same usury that is commanded to be abandoned in
this verse, and it is decisively and definitely included and comprised therein.
Also, the verse is a clear text declaring it unlawful. So, after this, is it
valid to say that the Book of Allah and the Sunnah of His Messenger, may Allah
bless him and grant him peace, contain no clear text declaring bank interest
unlawful?
[1] Aḥkām
al-Qurʾān by al-Jaṣṣāṣ, 1/1465
[2] Asbāb
an-Nuzūl.
[3] Ibid, al-Wāḥidī, p.59.
[4] See Ḥāshiyah
Kanūn ʿalā ar-Rahūnī 5/92.
[5] At-Tafsīr
al-Kabīr by al-Fakhr ar-Rāzī.
[6] Ḥāshiyah
Kanūn ʿalā ar-Rahūnī 5/92.
[7] See Sīrat
Ibn Hishām 1/203.
[8] Al-Fatḥ
6/228.
[9] (tn): Referred to in English as a sleeping
partnership, this is an agreement in which one party provides the capital while
the other does all the work and the profits are shared between the two based on
whatever they agree upon. It is also called qirāḍ
in Arabic.
[10] (tn): i.e. the literalists, a school of law
founded by Dāwūd az-Ẓāhirī (d.270 AH) and later died out due its rigid
literalism.
[11] Related by Abū Dāwūd 3/244.
[12] Related by at-Ṭabarānī, see Ḥāshiyat Kanūn ʿalā ar-Rahūnī 5/93.
[13] Al-Jāmiʿ
li Aḥkām al-Qurʾān 3/236.
[14] Related by Ibn Mājah and al-Ḥākim, see Mukhtaṣar Ibn
Kathīr 1/247.
