How to balance form and substance - the role of Sharia Scholars

Gassner's picture

Dear Reader,

Many times I read, and on all conferences we debate on the issue of form over substance - is their a simple solution?

Let's revisit:

Form over substance means that contemporary Islamic finance takes more emphasize on the form of the contracts (in their Arabic terminology like Murabaha, Musharaka etc.) as in their substance, especially their economic substance, which often looks the same after conducting a sequence of Arabic named contracts.

Scholars have to judge the appearance of the form, meaning the contracts in front of them. A judge shall not guess the intentions of the contractual parties but typically has to rely on the text itself to come a decision. Different schools of Islamic law have different degrees on reliance on the form and considering or rejecting to assume 'intentions' . The hesitance to guess about 'intentions' is based on the fear to commit injustice to the parties and a procedural cause to get evidence about them.

Hence, we face a serious issue here: Intentions are the single most important criterion from an Islamic perspective for the fearful Muslim - if his intention is bad, his deed is bad, independent of the proper form! This raises the question what sense it makes for such a Muslim to utilize a Fatwa, which does not take into consideration the very intention of the envisioned deed?

A possible solution:

If you go and ask for a fatwa prepare your agreements to be reviewed properly:

There is usually a preamble preceeding an agreement - it is there where in most Western jurisdictions I came across - the intentions and objectives are written. If you are precise and honest in writing your intentions into this preamble the Islamic scholars have to judge them and are reliefed from guesswork about them - they become part and piece of the contract.

Additionally there is nothing wrong in asking scholars for further advice on the subject matters as advice can go further than judgements.