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Proceeding 

5th International Conference on IslamicJurisprudence in the 21st Century 

“Islamic Financial Industry and the Need for

Revision within the Framework of Maqasid

al-Shari’ah” 

Department of Fiqh & Usul al-Fiqh

Kulliyyah of Islamic Revealed Knowledge

International Islamic University Malaysia 

2014 

Copyright©  Department of Fiqh & Usul al-Fiqh 

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  ONTENTS

Objective of Islamic Banking: Theoretical Perspective With Reference ToMaqasid Al-Shari’ah

1

Maqasid of Waqf: Rendering Social Welfare Services In The Context of

Social Entrepreneurship 5

Islamic Principles For Investment In Stock Market 14

Islamic Banking System And Mode of Leasing: A Comparative AnalysisIn The Light of Maqasid Al-Shari’ah

23

Ijtihad Istislahi Dalam Isu-Isu Zakat: Satu Tinjauan 35

 Advancing The Cause of Maqasidu Ash-Sharia Through ADR: AnOverview

42

Shariah And Conventional Corporate Governance With Reference ToThe Framework In The Malaysian Financial Industry

52

Theories of Profit And Juristic Understanding In Islamic FinancialTransaction: An Approach In Fiqh Reflection

64

Divergence Of Ijtihad And Its Implications In Islamic Finance 78

 Al-Ij ā rah (Islamic Financial Lease) and its Applicability in IslamicBanking System in Nigeria in the light of Hire Purchase Act 1965

94

Legal Framework On Islamic Finance In Nigeria: A Critical AppraisalOf Hurdles Against The Effective Shari‘Ah Governance

108

Murabaha Financing Revisited: The Contemporary Debate On Its UseIn Islamic Banks

117

On the Limitation and Openendedness of Al-Kulliyyat al-Dar ū riyy ā t(the Necessary Universals of the Shar ī  ʿah): A Perspective

125

Measuring The Performance Of Islamic Banks Using Maqasid Model 145

Sukuk: Development And Challenges In Bangladesh Capital Market 157

Principle Of Khiyar Al-Ru’yah And Its Application According To IslamicLaw As Proposed By Muslim Jurists

168

Mutual Consent In The Formation Of Contracts In Islamic Law: AJuristic Analysis From Maqasid Perspective

178

The Development Of Measuring Scale Items For The Constructs OfSpecific Maqasid: The Case Of Malaysian Islamic Financial Institution 193

Economic Fiqh As Source Of Legal Development On Inclusive EconomicIn Indonesia

214

Replacement Of Short Selling By Bay’ Al’arbun In Islamic Finance:Creative Innovation Or Blind Imitation

230

International Islamic Stock Exchange (IISE) As A Creative and EfficientIslamic Financial Institution for Expand The Scope of InternationalCapital Market Within The Framework of Maqasid Al-Shari'ah

241

Repositioning And Strategizing Islamic Bank Industry In Nigeria ForSocio-Economic Effectiveness And National Development 261

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 Al Sarakhsi On Riba And Contemporary Islamic Banking 266

Strategi Pengentasan Kemiskinan Melalui Akad Pemberdayaan (StudiPada Bmt Beringharjo Yogyakarta)

285

Dealing of Wealth and Financial Transaction in Islam: Maqasid Al-

Shariah based Principles and Approaches

306

Marketing for Islamic Finance Products: An Analysis from MaqasidPoint of View

319

Ivdb Performance Of Islamic Banks In Malaysia: A Pilot Study WithSaidin-Index Application

330

Charting A Course On The Islamic Finance Ocean: A Survey Of IslamicInsurance Literatures

356

Zakat Perniagaan Dalam Institusi Perbankan Di Malaysia 373

Harmonizing Legality with Morality in Islamic Banking and Finance: A

Quest for Maq ā  ṣid al-Shar 

ī  

‘ah Paradigm

389

 Absolute Assignment in Takaful Industry: Shariah Contracts, Issuesand Solutions

402

Legal And Regulatory Challenges Facing The Concept Of Sukuk(Islamic Bond) In Nigeria

422

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5th International Conference on Islamic Jurisprudence in the 21st Century 2014  

 Department of Fiqh and Usul al-Fiqh , International Islamic University Malaysia

-117 -

MURABAHA FINANCING REVISITED: THE CONTEMPORARY DEBATE

ON ITS USE IN ISLAMIC BANKS

By:

Dr. Necmeddin Guney

Necmettin Erbakan University Faculty of Theology, Konya, Turkey

The murabaha contract, an ordinary contract in classical Islamic law,has played a significant role in the emergence and development of modernIslamic Banking and Finance. This contract which is basically a “resale witha stated profit” contract was introduced into the modern literature in the late70’s in a totally redesigned form as an alternative to the conventional modesof credit. Although the extensive use of Murabaha is discouraged by Muslimscholars and the use of profit/loss sharing modes are advised, the Islamicbanks have been using this technique excessively. This modern financing toolhas become the subject of intense debates since then and has also been

subject to criticism by some scholars.This paper aims at portraying the juristic discussion and debate on this

modern contract and its application by Islamic banks. The first part of thepaper introduces the subject and gives a summary of Islamic injunctions onthe murabaha contract in its original form based on the primary sources ofIslamic law. The second part, which is the substantial part of the paper,portrays the profound transformation that the murabaha contract hasundergone to make mark-up financing possible and summarizes thediscussions related to the modern use of murabaha by Islamic banks.

 Various aspects of the modern application of murabaha will bediscussed in the paper: the permissibility of unilateral promises (wa’d) to bebinding, agency issues, possible defects (ayb) in the object of sale and theavoidance of banks of the risks related to ownership and possesion of theobject before its sale to the client. The paper will highlight the use of someprinciples like necessity (darurah) and public benefit (maslaha) and therecourse to combining views of different legal schools (talfik) in validatingthis new contract and will also criticize its negative role in the social failureof Islamic finance. Eventually, the paper will make some suggestions to carryout murabaha financing in conformity with the ethico-legal principles of theShariah and the welfare of the society.

KEYWORDS: Murabaha Financing; Islamic Law; Islamic Banks

1. Introduction

Islamic banks (“Participation banks” in Turkey) utilize the money they havecollected through the use of various Islamic banking instruments. Although equitycontracts and profit-and-loss sharing is encouraged in Islamic law, fixed return modes offinancing rank highest in use by Islamic banks. Murabaha is the most common methodused by islamic banks to arrange financing. (Sairally, 2002, p. 73)

In Arabic Islamic finance literature, the phrase used for murabaha transactions is"al-Mur ā baha li al- ā mir bi al-shir ā " (Murabaha to Purchase Orderer). Since a profitmargin is added explicitly to the cost price, it is often referred to as “cost-plus financing”in English. In Malaysia the term “Bai bi thaman ā  jil ” (BBA) is used for long term credit

sales. In Turkey, it is also called either "production support (üretim desteği)" or"individual financing support (bireysel finansman desteği)".

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5th International Conference on Islamic Jurisprudence in the 21st Century 2014  

 Department of Fiqh and Usul al-Fiqh , International Islamic University Malaysia

-118 -

The contemporary application of murabaha is a product of modern conditions; hencethere are many different aspects for debate. Although it is widely accepted by scholars ofIslamic law, there are still several controversies around its application. On the otherhand, since murabaha mimics the standard debt contract in conventional bankingsystems, its predominance represents a challenge to the idea that Islamic finance wouldprovide an alternative to interest-based conventional financial systems. Therefore,

murabaha, as applied by Islamic banks today, has generated debate amongst Islamicscholars and Muslim finance specialists.

Our paper here is related to its Islamic law aspect. This paper attempts to discussthe main criticisms directed at modern murabaha financing. The Islamic validity ofmodern murabaha as practiced by Islamic banks will be evaluated and any violations ofthe injunctions will be highlighted.

2. Murabaha in Classical Islamic Law

In classical fiqh literature sales (bay‘ ; pl. buy ū ‘ ) are categorized into two groupsaccording to how the price is determined. If the price is determined between buyer and

seller without referring to the original cost of the goods, it is called a mus ā wamah  (bargain) which is the common form of trading. If the seller discloses his cost and hisprofit or loss, this is called a trust sale (bay‘ al-am ā nah ). Depending on whether the sellermakes a profit or a loss, it is called either mur ā baha  or wadia . If the good is sold at itscost, it is a tawliya . (Mawsili, al-Ikhtiyar , v. 2, p. 28; “al-Bay”, al-Mawsuah al-Fiqhiyyah ,v. 9, p. 9)

The word mur ā baha   is derived from the Arabic word ribh   that means profit orgain. Murabaha literally means doing business on a cost-plus-profit basis. As mentionedabove, murabaha is one of the “trust sale” categories. In murabaha, the seller explicitlyreveals his cost and specifies his profit margin as percentage of the cost or in definitemoney terms. (Abu Zayd, 2004, p. 37; Sairally, 2002, p. 74) This type of sale makes sensefor customers who don’t know the market price and would like to depend on the

declaration of the seller.The most important condition for this sale to be valid is that both parties know

the cost and selling price of the goods. Additionally, according to most fiqh schools (exceptthe Shafiis) the goods must be mithli   (standart) objects and according to Hanafis thegoods must be something exclusive of gold and silver. Since this is a trade based on trust,in case the seller is dishonest in his declaration of the cost, this is regarded as cheatingand a compensation for this is dealt with in detail in classical fiqh works. (Abu Zayd,2004, pp. 53-64; “Murābaha”, al-Mawsuah al-Fiqhiyyah , v. 38, pp. 319-322)

3. Murabaha as a Modern Instrument

Modern murabaha is based on the purchase of a bank some goods and resellingthem to the customer who requested them. Eventually this is a sale with an agreed profitmargin over the cost price along with deferred payment. (Ayub, 2007, p. 219)

Murabaha, an ordinary type of sale in the classical period, seems to haveundergone a significant change and transformation by evolving into a modern contracttype and financing model that is increasingly located in the center of Islamic banking.Murabaha contracts as practiced today by Islamic finance institutions have highlydifferentiated shapes and terms compared to the classical murabaha. Modern murabahais a complex and multi-stage process compared to its classical equivalent/counterpart.The point modern murabaha arrived is quite different from the classic murabahatransaction in its nature and quality. That's why this new contract is also called“financial murabaha”. (Saadallah, 2007, p. 174) We prefer the term "modern murabaha"

in our paper.

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5th International Conference on Islamic Jurisprudence in the 21st Century 2014  

 Department of Fiqh and Usul al-Fiqh , International Islamic University Malaysia

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The first introduction of this concept to Islamic banking is by Sami HasanHammoud in his PhD thesis “Tatwir al-‘amal al-masrafiyye bim ā  yattafiqu wa al-shariaal-isl ā miyya ”, meaning “Developing banking products that is in accordance/consistentwith islamic law” (Cairo, 1976). He has based this model mainly on some examplesmentioned by Imam Shafii.

Modern murabaha helps banks assist clients to obtain commodities they need andpayments are made to the Islamic bank by installments. Modern murabaha consists ofthree components:

i. Promise phase: the bank and the customer promise the buying and selling ofgoods or services

ii. First contract: The bank purchases the requested goods or services from a thirdparty at the order of the client

iii. Second contract: The bank charges a mark-up to the cost and sells the goods orservices to the customer at credit. ( Abu Zayd, 2004, pp. 239-243; Sairally, 2002, p. 74)

The first thing we can say about modern murabaha is that it is a compoundcontract and not directly related to the classical straight forward and simple murabaha.

When we compare the two contracts, we see similarities in some aspects but manydifferences in others aspects. It is clear in this case that differences prevail. When welook more closely, it is really not possible to mention a similarity of their natures but onlya resemblance of names. In this sense, giving long lists of similarities and differencesbetween the two contracts can be misleading. Hence, it is important to underline thedifference between the two contracts in their nature.

First of all, modern murabaha is a complex contract that consists of three stages.The first two steps have nothing to do with murabaha. In the first stage the customerpromises that if the bank purchases the property he needs, he/she will repurchase it fromthe bank; in the second stage the Islamic bank acquires the good for the customer and inthe third stage the bank sells the property to the promising customer. Only the thirdstage of modern murabaha is identical to classical murabaha, since the price of the goodsin both sales is determined based on its original cost. Consequently only the third stage issubject to classical rulings about classical murabaha.

The promise by the customer to the bank turns this arrangement into a threeparty compound contract. While in classical murabaha there is neither a request from thecustomer nor a promise (wa‘d) or prior agreement between the customer and the bank.This difference is a major one that changes the structure and validity of a contract andrenders it impossible to see both contracts as identical.

 Another point is that, in classical murabaha, customers don’t know the cost of thegoods, so the vendor's false statement related to the cost seriously affects the authenticityof the contract. Whereas in modern murabaha, the customer knows the price and theadded mark-up exactly. Many times it’s the customer himself who does all the

arrangements related to the sale on behalf of the bank. Therefore the core idea ofclassical murabaha (“a trust sale”) seems no longer relevant in modern murabaha.

In oppositon to classical murabaha, in modern murabaha, the bank tries to sellthe goods immediately to the requesting customer and tries to avoid damage liability.This is also a major difference. Another difference is that theoretically, the payment ofthe price in both types can be either cash or in installments. But practically the paymentin modern murabaha is always in installments. Lastly, modern murabaha utilizesviews/rulings of different legal schools (madhhabs) to obtain a permissible contract whileclassical murabaha is deemed permissible by all schools of fiqh.

 Although it is a common practice to spot similarities in this context, eventually itis very hard to find significant similarities between classic and modern murabaha.

Depending on whether the initial promise is regarded binding or not, this differencewould be more or less clear. Mostly, current Islamic banking practices are based on thepremise that promises are binding. Therefore it would make more sense to see modern

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5th International Conference on Islamic Jurisprudence in the 21st Century 2014  

 Department of Fiqh and Usul al-Fiqh , International Islamic University Malaysia

-120 -

murabaha as a new type of contract that needs to be evaluated according to the generalprinciples of Islamic law. (From this viewpoint, the Malaysian choice of calling long-termmurabaha “Bai bi thaman ā  jil ” (BBA) makes more sense.)

In light of this background we see three different approaches to the permissibilityof modern murabaha among scholars:

i. Proponents of modern murabaha: This approach constitutes the majority view.The scholars who adobt this view mostly base their ideas on practical concerns likeeconomic needs of Muslims, competition with interest based banks and permissibility ofproducing new types of contracts in islamic law.

ii. Opponents of modern murabaha: These scholars see the large scale use ofmurabaha as a deviation from Islamic banking principles and criticize the long termtendency of Islamic banks to utilize debt-like instruments. They demand from Islamicbanks to replace them with profit-and-loss based instruments.

iii. Balanced approach to murabaha: These scholars accept this new instrumentin a general manner but raise objections to some details of the theory and also to thepractical application of modern murabaha by Islamic banks today. This approach

constitutes also our approach to this problem.

4. Problems and Criticisms of Modern Murabaha

There has been some discussion among scholars concerning the modernmurabaha contract and the conditions it is based on. The questions raised relate to suchissues as the value of time, the binding promise, avoidance of Islamic banks of risksrelated to trading and whether modern murabaha is a disguised form of interest.(Sairally, 2002, p. 75)

a) Time value of Money: Murabaha vs. Interest Based Loans

Modern murabaha has been criticized as being a round-about way of charging

interest by artificially transforming a financing transaction into a purchase and sale withdeferred payment. The most important theoretical justification for this is the issue ofcompensation for value of time. It is maintained that the increase in the price vis-a-visthe sell of ordered goods on credit to the client is analogous to interest charged on a loan.This argument is fallacious since it equates reselling at a higher price and charginginterest. We have to make it clear that Islamic law allows associating a value to time incase of a sale while it prohibits it in the case of a loan. Hence, time can be attributedvalue when there is a sale related to real commodities. Similarly a modern murabaha,when carried out properly, involves a credit sale to the client and not a loan to finance hisneed. Therefore, its nature is that of a sale and not a conventional loan. (Sairally, 2002, p.77; Ayub, 2007, p. 89)

b) The Permissibility of Unilateral Promises Wa’d) to be Binding

The problem of binding promises is actually the core point of the discussionaround modern murabaha since this issue has a deep impact on the nature of anarrangement.

When a client orders a commodity from an Islamic bank, the bank requests theclient to sign a “promise to buy” to ensure that the client eventually buys what he/sheordered. The bank also promises the client to sell him the good when it is purchased. Thisis because Islamic law doesn’t allow the selling of a good which is not owned yet sinceownership cannot be immediately transferred to the purchaser. (Sairally, 2002, p. 84)

Islamic scholars are unanimous that promises are ethically binding. Thediscussion is whether they are also legally binding and whether promises can be enforcedby law. There are differences of opinion on this subject. Only the Maliki School is of the

idea that promises are also legally binding. (Hattab, 2000, pp. 240-241; “Wa’d”, al- Mawsuah al-Fiqhiyyah , v. 44, pp. 73-78)

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5th International Conference on Islamic Jurisprudence in the 21st Century 2014  

 Department of Fiqh and Usul al-Fiqh , International Islamic University Malaysia

-122 -

these types of practices make modern murabaha contract seem very similar to bank loansand remove the essential difference between Islamic banking and conventional bankingloans. We can say that using agents can only be permissible, so long as the bank bearsthe commodity risk (dam ā n ) of the good from the time of the banks possession until it isresold to the client. (Sairally, 2002, p. 81; Cebeci, 2010, pp. 149-151)

b) Some banks stipulate in the contract that even if the commodity cannot bedelivered due to external reasons, the client has the obligation to pay the installments tothe bank. This stipulation is unacceptable in Islamic terms because the bank has todeliver the goods specified in the order.

c) Possible defects (‘ayb) in the object of sale are also a similar problem. Banks don’taccept the responsibility for any defects in the goods. This is justified with the help of theHanafi view that accepts total irresponsibility of the seller for defects if it is stipulatedduring the purchase. (Abu Zayd, 2004, pp. 225; Cebeci, 2010, pp. 164-165)

d) Some banks stipulate charging earnest money during the promise stage. This isnot permissible. Money paid as security is a matter of debate in Islamic contract law.Those who see it permissible see it only permissible related to a contract and there is nocontract during the promise stage.

e) Some banks stipulate that the client has to pay the insurance premium althoughthe burden for these costs has to be on the bank during this stage. (Abu Zayd, 2004, pp.226)

5. Conclusion and Recommendations

This paper dealt with what we prefer to call “modern murabaha”, a cost-plus-salecontract where an Islamic bank purchases a product for a client and sells the same goodsto him at an agreed mark-up price that is paid in instalments.

The discussion that took place on modern murabaha is perhaps one of the mostdetailed and complex debates in Islamic contract law and Islamic economic thought.Therefore, modern murabaha is a typical sample that can help us to understand modernMuslim scholars’ approach to contemporary economic issues and the reasoning they applyto come up with solutions.

Some scholars and laymen find Islamic banking and murabaha arrangementsartificial since they see banks as pure financial intermediaries and not traders. On thecontrary, many scholars suggest that Islamic banks are supposed to be “non-purefinancial intermediaries” meaning that they have to further assume some kind ofcommercial intermediation. Instead of providing funds directly to investors, Islamicbanks are supposed to transfer assets they purchased to clients through credit saleduring murabaha. (Sairally, 2002, s. 80; Saadallah, 2007, pp. 174-175)

Modern murabaha has two faces: the theoretical face and the practical face. While

the theoretical aspect is represented by Muslim scholars, the practical aspect isperformed by islamic banks across the muslim world. Those who are against the practiceof modern murabaha have problems in explaining why it is theoretically impermissibleand those who are pro-modern murabaha find difficulties in justifying its practicalapplication by many Islamic banks today.

It seems that arguments of the supporters of modern murabaha are moreattractively presented in scholarship since practical financing needs of the Muslimsoverrides many other concerns. Consequently, when it comes to doing legal reasoning(ijtih ā d ) regarding banking and finance, first of all key terms like darurah (necessity) andmaslaha (social benefit) come up. Another method utilized is recourse to combining viewsof different legal schools (talfeeq ) in validating modern murabaha. This eclectic method ishighly problematic because whenever scholars face a problem, they choose a view from

different legal schools that solves the problem. This is done without regard to academicintegrity and consistency of the legal schools.

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5th International Conference on Islamic Jurisprudence in the 21st Century 2014  

 Department of Fiqh and Usul al-Fiqh , International Islamic University Malaysia

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Unlike the similarity in their names, modern murabaha is completely different fromits classical namesake: It is a compound arrangement; the avoidance of banks from allrisks related to the goods is a major problem; promise is being regarded binding, thereare problems regarding possession (qabd ) since there is not a real taking delivery of thegoods by the bank; combination of contracts is sometimes in question; the way howagency works constitutes a problem and the problem of defaulting clients is another

problematic aspect.

Therefore, our study showed us that it is not possible to render modern murabahapermissible using classical madhhab-based fiqh methodology. However, we don’t want tosay that modern murabaha should be considered impermissible. Adopting a strictinterpretation that regards debt-finance as prohibited is neither realistic nor viable. According to empirical research in the developed countries, the best possible lowest resultin external finance in the form of debt is 35 per cent. (Yousef, 2004, p. 76) The point wewant to highlight is that we should not try to base its permissibility on classical fiqhprinciples or its resemblance to previously known contracts in Islamic law. Combiningviews of different legal schools for this aim is also not a consistent solution. The bestsolution put forward would be regarding modern murabaha as a new nameless (non-nominal) contract and judge/evaluate it based on the main principles and prohibitons of

islamic contract law. The ban on interest (riba) should be carefully observed whileproposing its theory and designing its practical application for Islamic banks.

The dominance of murabaha in Islamic banking industry and the neglect of otherprofit-and-loss based financing modes has been criticized and also has raised doubtsabout the sincerity of these banks. Although modern murabaha is a credit solution forthose clients in need of a specific commodity who cannot afford to make cash payment, atthe same time, its dominance represents the failure of Islamic banks to respond to thefull range of financing needs of those seeking external finance that is in accordance withIslamic values. Another shortcoming is in the field of development. The tendency ofIslamic banks to utilize debt-like instruments took them away from the goal ofcontributing to the development of their countries. There is a clear need for the adoptionof other less debated modes of financing that also encourages long term investments.

In conclusion, we can say that modern murabaha transactions that are carried out inconformity with its initial theory are in accordance with Islamic principles and do notviolate Islamic law. There tends to show up more problems during the practice of modernmurabaha. First of all, Islamic banks cannot act as pure financial intermediaries andhave to assume a commercial function to some extent. Due to deviations in practice, thereis the risk that people loose their confidence in Islamic banking and itscredibility/permissibility is brought into doubt. Therefore, Islamic banks should put in agreat deal of effort towards the proper implementation of modern murabaha and take thenecessary precautions to correct any deviations in the practice of it.

REFERENCES

 Abu Zayd, Abdulazeem, Bay al-mur ā baha wa tatb ī k ā tuh ū  al-mu ā sira fi al-mas ā rifal-Isl ā miyyah , Damascus: Dār al-fikr, 2004.

 Ayub, Muhammad, Understanding Islamic Finance , John Wiley & Sons Ltd. 2007.

Baji, Abu al-Waleed, al-Muntaqa Sharh al-Muwatta , Cairo 1332, 7 vols.

“al-Bay”, al-Maws ū ah al-Fiqhiyyah al-Kuwaitiyyah , v. 9, pp. 5-42.

Cebeci, İsmail, Modern İ slam İ ktisad ı   Literatüründe Murabaha Tart ı ş malar ı  [Debates on Murabaha in the Literature of Modern Islamic Economics] , MarmaraUniversity Phd Thesis, 2010.

Hattab, Kamal Tawfeeq, “al-Qabd wa al-ilzām bi al-wa’d fi aqd al-murābaha li al-

āmir bi al-shirā fi al-fiqh al-Islami”, Mu’tah li al-buh ū th wa al-dir ā s ā t , vol. 15, issue 1,2000, pp. 233-259.

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5th International Conference on Islamic Jurisprudence in the 21st Century 2014  

 Department of Fiqh and Usul al-Fiqh , International Islamic University Malaysia

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Imam Malik, al-Muwatta , ed. Muhammad Fuad Abdulbaqi, Beirut 1985.

Imam Shafii, al-Umm , Beirut: Dar al-Marifah 1990, 8 vols.

Mawsili, Abdullah b. Mahmood, al-Ikhtiy ā r li ta’leel al-Mukht ā r , Cairo: Halabipress, 1937, 5 vols.

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