The Economic Law of Islam Part (2/3)
Feature Article
5. Usurpation of Wealth
يَاأَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُمْ بَيْنَكُمْ بِالْبَاطِلِ إِلَّا أَنْ تَكُونَ تِجَارَةً عَنْ تَرَاضٍ مِنْكُمْ (29:4)
O believers! Do not devour one another’s wealth by evil means except through trading by mutual consent. (4:29)
This verse prohibits a person from devouring other people’s wealth through means which are against justice, honesty, fairness and against the good conventions of a society. It is this directive of the Qur’an which forms the basis of all prohibitions in Islam that pertain to economic matters. Obtaining money through illegal gratification, theft, extortion, lying, co-operation with evil, embezzlement, misappropriation, consuming unclaimed items without publicizing them, all come under it. These evils require no further discussion since they are universally acknowledged sins in every society and in every religion. Transactions and activities which become a source of deceit or damage for the parties involved are also corollaries of this directive. Their various forms which the Prophet forbade (sws) in his own times are:
Selling something before its possession is taken.16
Selling grain bought in mounds before bringing it to the place where it is sold.17
Selling and purchasing done by a city dweller for a villager.18
Increasing one’s bid in an auction just for deception.19
Bargaining when someone else is bargaining.20
‘محاقله’ (Muhaqalah):Selling crop when it is still in the spikes.21
‘مزابنه’ (Muzabanah): Selling the dates which are on a date-tree in exchange for plucked dates.22
‘معاومه’ (Mu‘awamah): Selling the fruits of trees for many years.23
‘ثنيا’ (Thaniya): Leaving an unspecified exception in a bargain. One of its forms, for example was that the seller would say: ‘I sell my grain to you, but I will take something out of it’.24
‘ملامسه’ (Mulamasah): A deal in which a person, without thinking, just touches the other person’s cloth and a deal is made in this manner.25
‘منابذه’ (Munabadhah):Adeal in which people throw something towards one another and, in this way, a bargain is made.26
‘بيع الى حبل الحبله’ (Bay‘ ila Habl al-Hablah): A deal in which people sell camels by saying: ‘Whatever offspring this camel gives birth to and when that offspring gets pregnant, whatever it gives birth to, then the [last] offspring is bought by me’.27
‘بيع الحصاة’ (Bay‘u’l-Hisah): In pre-Islamic times, such a bargain existed generally in two forms: (a) people would make a deal about a piece of land and then the buyer would throw a pebble; the distance covered by the pebble would be regarded as the length of the sold land, and (b) people would throw a pebble and say that whatever thing it touched would be considered as sold.28
Selling fruits of a tree before their quality and characteristics become evident.29
Selling spikes before they turn white and become safe from calamities.30
Selling a commodity which is defective, except when the buyer is informed of its defects.31
Holding the milk of camels and goats in their udders before selling it.32
Intercepting tradesmen and buying their merchandise before they reach the markets.33
Making a deal by giving money in advance such that a person obtains the item after it is ready except if this transaction is carried out for a fixed measure, a specified weight and a definite period of time.34
‘مخابره’ (Mukhabarah): Adopting methods of crop-sharing in which the profit of the landlord is fixed before hand.35
Adopting methods of crop-sharing in which the production of a particular area of land is regarded as the right of the landlord.36
Selling jointly owned properties without giving the shareholders a chance to buy them except if the ownership divisions are determined and the paths are separated.37
Selling property which lies on a pathway that is common with a neighbor’s house without giving him the chance to purchase it.38
Storing commodities of general use to create a shortage and thereby increase their prices in the market. The Prophet (sws) utterly forbade this and is reported to have said:
مَنْ دَخَلَ فِي شَيْءٍ مِنْ أَسْعَارِ الْمُسْلِمِينَ لِيُغْلِيَهُ عَلَيْهِمْ فَإِنَّ حَقًّا عَلَى اللَّهِ تَبَارَكَ وَتَعَالَى أَنْ يُقْعِدَهُ بِعُظْمٍ مِنْ النَّارِ يَوْمَ الْقِيَامَةِ. (مسندأحمد: رقم 19802)
Anyone who interfered in the markets of Muslims merely to increase the rates [of the commodities], then the Almighty has the right to make a big fire his abode on the Day of Judgment. (Musnad Ahmad: No. 19802)
These are the various forms of sale and purchase and crop-sharing which the Prophet (sws) prohibited in his times. Since all the above mentioned directives are based on the underlying bases of deceit and damage, the directive of prohibition will stand dissolved in circumstances in which these bases no longer exist, just as if, as a result of evolution and development of civilizations, these bases emerge in some new economic activity, then those charged with authority can prohibit that activity.
Gambling and interest also belong to this category of devouring wealth through evil means. This writer will now venture to elaborate the view of the Qur’an in detail on these two hideous crimes.
Gambling
Gambling, everyone knows, is merely chancing one’s luck. The Qur’an has called it ‘رِجْسٌ مِنْ عَمَلِ الشَّيْطَانِ’ (from among the filthy works of Satan). Obviously, this expression has been employed because gambling gives rise to moral misconduct in a person which gradually encompasses his personality. The reason is that if an economic activity is based on rights and services and rational decisions, it develops a high moral character, and if an economic activity is based on mere chance, fortune and fortuity, it produces an attitude which is based on avoidance of hard work and service. This gives rise to such mean qualities as cowardice and faint-heartedness which subsequently eliminate the innate qualities of honor, integrity, sincerity and self-respect. As a result, a person becomes unmindful to the remembrance of the Almighty and to prayer, and instead of having love and affection for his fellow beings, he has nothing but enmity and hatred for them. The Qur’an says:
يَاأَيُّهَا الَّذِينَ آمَنُوا إِنَّمَا الْخَمْرُ وَالْمَيْسِرُ وَالْأَنصَابُ وَالْأَزْلَامُ رِجْسٌ مِنْ عَمَلِ الشَّيْطَانِ فَاجْتَنِبُوهُ لَعَلَّكُمْ تُفْلِحُونَ إِنَّمَا يُرِيدُ الشَّيْطَانُ أَنْ يُوقِعَ بَيْنَكُمْ الْعَدَاوَةَ وَالْبَغْضَاءَ فِي الْخَمْرِ وَالْمَيْسِرِ وَيَصُدَّكُمْ عَنْ ذِكْرِ اللَّهِ وَعَنْ الصَّلَاةِ فَهَلْ أَنْتُمْ مُنتَهُونَ (5:90-1)
O you who believe: this liquor and gambling and idols and these divining arrows are abominations devised by Satan. Avoid them that you may succeed. Satan seeks to stir up enmity and hatred among you by means of liquor and gambling and to keep you from the remembrance of Allah and from the prayer. Will you not then abstain from them? (5:90-1)
An important point to note is that gambling in pre-Islamic times was a means through which the rich showed their generosity and helped the poor and needy. In winters, when cold winds blew in and caused conditions akin to drought, the courageous would gather at various places, drink liquor and in their state of inebriation would slaughter any camels they could get hold of. They would pay the owner of the camels whatever price he demanded. They would then gamble on the meat of the slaughtered camels. Whatever parts of meat a person won in this gambling, he would generously distribute them among the poor who would gather around them on such occasions. In pre-Islamic Arabia, this was a matter of great honor and people who took part in this activity were considered very philanthropic and generous. The poets would narrate the accounts of their benevolence in their odes. On the other hand, people who stayed away from this activity would be called ‘Barm’ (stingy).
It was this very utility of liquor and gambling which prompted people to inquire when they were regarded as prohibited items. The Qur’an asserted in its reply that in spite of possessing this benefit, they were instrumental in producing moral misconduct in an individual, which in no case can be allowed:
يَسْأَلُونَكَ عَنْ الْخَمْرِ وَالْمَيْسِرِ قُلْ فِيهِمَا إِثْمٌ كَبِيرٌ وَمَنَافِعُ لِلنَّاسِ وَإِثْمُهُمَا أَكْبَرُ مِنْ نَفْعِهِمَا (219:2)
They ask you about liquor and gambling. Tell them: there is great sin in them and some profits as well for people. But their sin is greater than their profit. (2:219)
Interest
Interest is also a similar sin that morally pollutes a person as well as the institutions involved in its transactions. Those who lend on interest totally safeguard their capital by not risking it in any way and extort profit from the poor borrower. In Arabic, it is called Riba and the Qur’an has used this very word for it. Everyone who understands Arabic, knows that it implies a fixed increase which a lender demands from the borrower just because he has given him the permission to use his money for a certain period. The Qur’an has vehemently prohibited it in the following words:
الَّذِينَ يَأْكُلُونَ الرِّبَا لَا يَقُومُونَ إِلَّا كَمَا يَقُومُ الَّذِي يَتَخَبَّطُهُ الشَّيْطَانُ مِنْ الْمَسِّ ذَلِكَ بِأَنَّهُمْ قَالُوا إِنَّمَا الْبَيْعُ مِثْلُ الرِّبَا وَأَحَلَّ اللَّهُ الْبَيْعَ وَحَرَّمَ الرِّبَا فَمَنْ جَاءَهُ مَوْعِظَةٌ مِنْ رَبِّهِ فَانتَهَى فَلَهُ مَا سَلَفَ وَأَمْرُهُ إِلَى اللَّهِ وَمَنْ عَادَ فَأُوْلَئِكَ أَصْحَابُ النَّارِ هُمْ فِيهَا خَالِدُونَ (275:2)
Those who devour interest will rise up on the Day of Judgment like the man whom Satan has driven to madness by his touch because they claim that trading is like interest and how strange it is that Allah has permitted trading and forbidden interest. Consequently, he who received this warning from the Almighty and desisted [in obedience thereto], then whatever he has taken in the past belongs to him and his fate is in the hands of Allah. And those who repeat [the offence] will be companions of the Fire and will abide therein forever. (2:275)
It is further stated:
يَاأَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللَّهَ وَذَرُوا مَا بَقِيَ مِنْ الرِّبَا إِنْ كُنتُمْ مُؤْمِنِينَ فَإِنْ لَمْ تَفْعَلُوا فَأْذَنُوا بِحَرْبٍ مِنْ اللَّهِ وَرَسُولِهِ وَإِنْ تُبْتُمْ فَلَكُمْ رُءُوسُ أَمْوَالِكُمْ لَا تَظْلِمُونَ وَلَا تُظْلَمُونَ (2:279-80)
O you who believe! Fear Allah and give up what remains of your demand for interest. If you do it not, beware of war from Allah and His Prophet. And if you repent, then you can have your principal amount. Neither will you be allowed to deal unjustly nor will you be dealt with unjustly. (2:278-9)
The reason why devourers of interest will be raised up on the Day of Judgment as madmen owes itself to their expression of amazement on the fact that the Almighty has not prohibited trading while He has prohibited interest, whereas there is no difference between the two. They maintain that if a trader can demand profit on his capital, why can’t a lender on interest demand profit on his capital. According to the Qur’an, only a madman can give such an insane statement and such insanity demands that its reward be no different than insanity itself. So in accordance with the law of similarity between the deed and its reward, such people would be raised up as madmen on the Day of Judgment.
Imam Amin Ahsan Islahi, while commenting on this expression of amazement of interest-devourers, remarks:
It is evident from the objection raised by the interest devourers that the breed of people who regard interest and trading as analogous to one another is not very rare after all. It was found even in olden times. The Qur’an has not even commented on this foolish objection since its baseless nature is self evident and only sheds light on the insanity of those who raise it. A trader invests his capital in a trade which is in demand from the people. He makes his merchandise available to people through hard work and by taking a lot of risk. These people, in the first place, were not in a position to produce this merchandise themselves, and if they were able to then it was only at a heavy cost. Moreover, a trader spews his capital in the open market for competition and his profit is determined by the low and high trends of the market itself. He may end up losing all his money due to these trends and he may be able to make some profit. So his hands are tied in this enterprise as he cannot earn a single penny of profit in selling his merchandise until his invested capital enters the market after being exposed to the risks and fluctuations of the market forces and after once again providing service to society.
So how can the enterprise of a trader, who takes risk and provides service to the society when he invests his capital, be compared to that of an interest devourer whose enterprise is mean, callous, cowardly and hostile to humanity in its very nature. He is a person who is not willing to take the slightest risk with his capital but is very eager to extort profit.39
It is because of this fiendish nature of interest that the Prophet (sws) is reported to have said:
الرِّبَا سَبْعُونَ حُوبًا أَيْسَرُهَا أَنْ يَنْكِحَ الرَّجُلُ أُمَّهُ (ابنِ ماجه: رقم 2304)
So great a sin is interest that if it is divided into seventy parts, then the lightest of these parts is equal in its extent to fornication with one’s mother. (Ibn Majah:No. 2304)
Here it should be kept in mind that the Qur’an has prohibited only the charging of interest; it has not prohibited the giving of interest. People who have to pay interest on a loan they have acquired in fact suffer injustice at the hands of the interest-devourers.
What also needs to be appreciated is that without any genuine reason a person who acts as an agent of an interest-devourer or writes down its transaction or bears witness to it, must be regarded as an equal criminal on the principle of ‘تعاون على الاثم’ (co-operation with evil). It is narrated by Jabir (rta):
لَعَنَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ آكِلَ الرِّبَا وَمُؤْكِلَهُ وَكَاتِبَهُ وَشَاهِدَيْهِ وَقَالَ هُمْ سَوَاءٌ (مسلم: رقم 1598)
The Prophet has severely condemned the devourer of interest and the one who pays interest and those who write an agreement [for such lending] and the two who are the witnesses to this document and has said: ‘All of them are equal’. (Muslim:No. 1598)
The Prophet (sws) has emphatically directed people to refrain from the slightest possible trace of interest while borrowing in barter as well:
الذَّهَبُ بِالذَّهَبِ وَزْنًا بِوَزْنٍ مِثْلًا بِمِثْلٍ وَالْفِضَّةُ بِالْفِضَّةِ وَزْنًا بِوَزْنٍ مِثْلًا بِمِثْلٍ فَمَنْ زَادَ أَوْ اسْتَزَادَ فَهُوَ رِبًا (مسلم: رقم 1588)
If you lend gold, then take back the same type and the same amount of gold; and if you lend silver, then take back the same type and the same amount of silver; for he who gave more or desired more, then this is precisely what is interest. (Muslim:No. 1588)
الْوَرَقُ بِالذَّهَبِ رِبًا إِلَّا هَاءَ وَهَاءَ وَالْبُرُّ بِالْبُرِّ رِبًا إِلَّا هَاءَ وَهَاءَ وَالشَّعِيرُ بِالشَّعِيرِ رِبًا إِلَّا هَاءَ وَهَاءَ وَالتَّمْرُ بِالتَّمْرِ رِبًا إِلَّا هَاءَ وَهَاءَ (مسلم: رقم 1586)
If you lend gold in exchange for silver, then there is a possibility of interest in this.40 Similarly, for wheat in exchange for another type of wheat41, barley in exchange for another type of barley, date for another type of date. Indeed if the exchange is done on the spot, then there is no harm. (Muslim:No. 1586)
This is the correct meaning of the above quoted A^hadith. If all the A^hadithon this topic had remained intact, the scholars of our Ummah would not have faltered in interpreting them. However, owing to the misinterpretation of the narrators in some chains of narration, the words ‘هَاءَ وَهَاءَ’(on the spot), or similar words in the second Hadith quoted above, were incorporated in the first one; similarly, the word‘الذَّهَبُ بِالذَّهَب’ (gold in exchange for gold) of the Hadith quoted first were put in place of the words ‘الْوَرَقُ بِالذَّهَبِ’ (if you lend silver in exchange for gold) of the second. It is because of this intermingling of words that our jurists have erroneously derived the concept of Riba al-Fadl from such A^hadith, whereas the correct concept in this regard is what the following words of the Prophet (sws) say:
إِنَّمَا الرِّبَا فِي النَّسِيئَةِ (مسلم: رقم 1596)
Ribais only in transactions of loan. (Muslim:No. 1596)
It should be borne in mind that interest pertains only to those transactions in which a commodity is borrowed for the purpose of ‘using it up’ whereby the borrower would be burdened to recreate it in order to return it to the lender. If any additional amount is demanded over and above it, then this no doubt is injustice as affirmed both by reason and revelation. On the contrary, transactions in which the commodities and items in question are ‘used’ rather than being ‘used up’ relate to lease, and the money demanded by the owner on providing this service, which is termed as rent, can in no way be objected to.
Similarly, it should also remain clear that whether a loan is acquired for personal, business or welfare purposes, the real meaning of Riba is not ascertained on these bases. It is an indisputable fact that in the Arabic language the word Riba, irrespective of the aim of the lender and the condition of the borrower, just implies a pre-determined increase acquired on a loan. Consequently, the Qur’an itself has clarified this fact: during its own period of revelation, lending on interest for business purposes was quite rampant and these loans were given with the intention of prospering through the wealth of others. The Qur’an says:
وَمَا آتَيْتُمْ مِنْ رِبًا لِيَرْبُوَا فِي أَمْوَالِ النَّاسِ فَلَا يَرْبُوا عِنْدَ اللَّهِ وَمَا آتَيْتُمْ مِنْ زَكَاةٍ تُرِيدُونَ وَجْهَ اللَّهِ فَأُوْلَئِكَ هُمْ الْمُضْعِفُونَ (39:30)
That which you give as loan on interest that it may increase on [other] people’s wealth, it has no increase with Allah; but that which you give as Zakah seeking Allah’s countenance, it is these people who shall get manifold [in the Hereafter] of what they gave. (30:39)
The expression ‘…that it may increase on [other] people’s wealth’ is not only inappropriate for application to interest-based loans given to the poor for their personal use, but is also clearly indicative of the fact that interest based loans were generally given for business purposes and in this way they ‘increased on other people’s wealth’ according to the Qur’an.
It is to this fact that the following verse also points:
وَإِنْ كَانَ ذُو عُسْرَةٍ فَنَظِرَةٌ إِلَى مَيْسَرَةٍ وَأَنْ تَصَدَّقُوا خَيْرٌ لَكُمْ إِنْ كُنتُمْ تَعْلَمُونَ (280:2)
If the borrower is in difficulty grant him respite until it is easy for him to repay and if you write off [the debt], it is better for you, if you only knew. (2:280)
Imam Amin Ahsan Islahi comments on this verse in the following words:
Today some naive people claim that the type of interest which prevailed in Arabia before the advent of Islam was usury. The poor and the destitute had no option but to borrow money from a few rich money-lenders to fulfill their personal needs. These money-lenders exploited the poor and would lend them money at high interest rates. It is only this type of interest which the Qur’an has termed as Riba and forbidden. As far as commercial interest is concerned, it neither existed at that time nor did the Qur’an prohibit it.
The verse categorically refutes this ‘allegation’. When the Qur’an says that if the borrower is in difficulty, he should be given respite until he is able to pay back his debt, it clearly points out that in those times even the rich used to acquire loans. In fact, if the style and stress of the verse are correctly understood, it becomes clear that it was mostly the rich who used to procure loans. Indeed, there was a strong chance that the borrower would find himself in difficulty even to pay the original amount. The money-lender, therefore, is directed to give him more time and if he forgoes the original amount it would be better for him. The words of this verse strongly indicate this meaning. The actual words of the verse are: ‘وَإِنْ كَانَ ذُو عُسْرَةٍ فَنَظِرَةٌ إِلَى مَيْسَرَةٍ’. The particle of condition ‘ِانْ’ (if) is not used for general circumstances, but, in fact, is used for rare and unusual circumstances. For general circumstances the particle‘اِذَا’ (if) is used. In the light of this, it is clear that the borrower in those times was generally affluent (‘ذُوْمَيْسَرَة’), but in some cases was poor or had become poor after acquiring the loan and in that case, the Qur’an has directed the money-lenders to give them a time rebate.42
He has concluded this discussion by saying:
Obviously, the affluent would have turned to the money-lenders not to fulfill their personal needs, but, of course, their business needs. So what is the difference between these loans and the commercial loans of today.43
6. Documentation and Evidence
I
يا أَيُّهَا الَّذِينَ آمَنُوا إِذَا تَدَايَنتُمْ بِدَيْنٍ إِلَى أَجَلٍ مُسَمًّى فَاكْتُبُوهُ وَلْيَكْتُبْ بَيْنَكُمْ كَاتِبٌ بِالْعَدْلِ وَلَا يَأْبَ كَاتِبٌ أَنْ يَكْتُبَ كَمَا عَلَّمَهُ اللَّهُ فَلْيَكْتُبْ وَلْيُمْلِلْ الَّذِي عَلَيْهِ الْحَقُّ وَلْيَتَّقِ اللَّهَ رَبَّهُ وَلَا يَبْخَسْ مِنْهُ شَيْئًا فَإِنْ كَانَ الَّذِي عَلَيْهِ الْحَقُّ سَفِيهًا أَوْ ضَعِيفًا أَوْ لَا يَسْتَطِيعُ أَنْ يُمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهُ بِالْعَدْلِ وَاسْتَشْهِدُوا شَهِيدَيْنِ مِنْ رِجَالِكُمْ فَإِنْ لَمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ مِمَّنْ تَرْضَوْنَ مِنْ الشُّهَدَاءِ أَنْ تَضِلَّ إِحْدَاهُمَا فَتُذَكِّرَ إِحْدَاهُمَا الْأُخْرَى وَلَا يَأْبَ الشُّهَدَاءُ إِذَا مَا دُعُوا وَلَا تَسْأَمُوا أَنْ تَكْتُبُوهُ صَغِيرًا أَوْ كَبِيرًا إِلَى أَجَلِهِ ذَلِكُمْ أَقْسَطُ عِنْدَ اللَّهِ وَأَقْوَمُ لِلشَّهَادَةِ وَأَدْنَى أَلَّا تَرْتَابُوا إِلَّا أَنْ تَكُونَ تِجَارَةً حَاضِرَةً تُدِيرُونَهَا بَيْنَكُمْ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَلَّا تَكْتُبُوهَا وَأَشْهِدُوا إِذَا تَبَايَعْتُمْ وَلَا يُضَارَّ كَاتِبٌ وَلَا شَهِيدٌ وَإِنْ تَفْعَلُوا فَإِنَّهُ فُسُوقٌ بِكُمْ وَاتَّقُوا اللَّهَ وَيُعَلِّمُكُمْ اللَّهُ وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ (282:2)
O you who believe! When you acquire a loan for a fixed period, record it in writing, and let a scribe write it down between you with fairness; he who can write should not refuse to write, and just as Allah has taught him to write, he also should write for others; the one who has acquired the loan should have [the document] written down and fearing Allah his Lord, he should not make any reduction in it. If he on whom rests the responsibility of writing is indiscreet or feeble or unable to have it written, then let his guardian do so with justice. And call in two male witnesses from among your men, but if two men cannot be found, then one man and two women from among your likable people so that if one of them gets confused, the other reminds her. And witnesses must not refuse when they are summoned. And whether the loan is big or small, be not negligent in documenting the deal up to its period. This is more just in the sight of Allah, it ensures accuracy in testifying and is the most appropriate way for you to safeguard against doubts. But if it be an everyday transaction, it does not matter if you do not write it down. And call in witnesses also if you sell or purchase anything. And let no harm be done to the scribe or the witness. If you do so, then this will be a transgression which will cling to you. And fear Allah. Allah is teaching you. He has knowledge of all things. (2:282)
This verse directs the Muslims to document monetary transactions whether in cash or in credit to safeguard against any dispute that may arise. Imam Amin Ahsan Islahi has summarized the directives mentioned in this verse in his Tadabbur-i-Qur’an in the following words:
1. Whenever a loan is acquired for a certain period, the transaction should be written down in the form of a document.
2. This document should be written down in a just manner by some scribe in the presence of both the parties. He should not be fraudulent in writing this down. A person who knows how to write should not refuse if he is called upon to do so. The skill of writing is a blessing of Allah, and, in gratitude to this, a person should help others whenever the need arises. The need for this piece of advice arose because in those times very few people knew how to write. Formal and legal documentation and registration had not begun and neither was its inception an easy affair.
3. The responsibility of writing down the document rests on the borrower. The document should state the name of the person from whom he has borrowed, and like the person who has been entrusted with the responsibility of writing down, he too should uphold the virtue of piety in this affair, and in no way try to damage the parties involved.
4. If the borrower is naïve, feeble or is not in a position to write down the document, then his guardian or attorney should have it written down on his behalf with justice and fairness.
5. Two male witnesses should testify over this document. The words used are ‘مِنْ رِجَالِكُمْ’ (from among your men), which imply two things simultaneously: firstly, the witnesses should be Muslims and known to the parties involved. The second thing which is specified in this regard is that the witnesses should be honest and trustworthy and of sound character.
6. If two male Muslims having the said qualities are not available, then one man and two women can be selected to fulfill this responsibility. The requirement for two women is because if one of them commits an error the other may correct her. This is not because women are inferior, but because this responsibility is not very suited to their temperament and general sphere of interests and the environment they are used to. Consequently, the Shari‘ah has given them some relief and assistance in it. This topic is discussed in detail in Surah Nisa.
7. People who have borne witness to a document should not desist from giving their testimony when they are called upon to do so because bearing witness to a truth is a great social service also, and as witnesses to the truth, it is a responsibility of the Ummah imposed on it by theQur’an.
8. If the loan, whether it be small in amount or large, is acquired for a period and is not an everyday loan, one must not show aversion to writing it down. People who ignore this by considering it a burden, sometimes get involved in severe disputes which produce far reaching results merely because of this slackness.
9. All these directives are in accordance with justice, and they safeguard testimonies and protect people from doubts and disputes. So it is necessary to follow them for the general well-being of the society.
10. Everyday loans and transactions are not required to be written down.
11. Witnesses, however, should be called upon important deals and transactions to resolve any disputes that may arise.
12. It is not proper for a party to harm the scribe or the witness if a dispute arises. Scribes and witnesses do a great social service, and if they are harmed, honest and cautious people will start avoiding these responsibilities and, except for professional witnesses, people will have difficulty in finding witnesses who are reliable. In present times, the reason honest and serious minded people avoid these responsibilities is that whenever some dispute arises in such an affair, the witnesses have to face a lot of trouble and discomfort. They become the targets of defamation, suffer monetary losses and even get killed. The Qur’an has stopped people from such excesses and warned that this is not a small offence that may be forgiven. It is a transgression which will cling on to them, and they will not be able to save themselves from its evil consequences. This is nothing but an effort to raze down the foundation of the pillar of bearing witness to the truth – the very objective of this Ummah.44
II
يَاأَيُّهَا الَّذِينَ آمَنُوا شَهَادَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمْ الْمَوْتُ حِينَ الْوَصِيَّةِ اثْنَانِ ذَوَا عَدْلٍ مِنْكُمْ أَوْ آخَرَانِ مِنْ غَيْرِكُمْ إِنْ أَنْتُمْ ضَرَبْتُمْ فِي الْأَرْضِ فَأَصَابَتْكُمْ مُصِيبَةُ الْمَوْتِ تَحْبِسُونَهُمَا مِنْ بَعْدِ الصَّلَاةِ فَيُقْسِمَانِ بِاللَّهِ إِنْ ارْتَبْتُمْ لَا نَشْتَرِي بِهِ ثَمَنًا وَلَوْ كَانَ ذَا قُرْبَى وَلَا نَكْتُمُ شَهَادَةَ اللَّهِ إِنَّا إِذًا لَمِنْ الْآثِمِينَ فَإِنْ عُثِرَ عَلَى أَنَّهُمَا اسْتَحَقَّا إِثْمًا فَآخَرَانِ يَقُومَانِ مَقَامَهُمَا مِنْ الَّذِينَ اسْتَحَقَّ عَلَيْهِمْ الْأَوْلَيَانِ فَيُقْسِمَانِ بِاللَّهِ لَشَهَادَتُنَا أَحَقُّ مِنْ شَهَادَتِهِمَا وَمَا اعْتَدَيْنَا إِنَّا إِذًا لَمِنْ الظَّالِمِينَ ذَلِكَ أَدْنَى أَنْ يَأْتُوا بِالشَّهَادَةِ عَلَى وَجْهِهَا أَوْ يَخَافُوا أَنْ تُرَدَّ أَيْمَانٌ بَعْدَ أَيْمَانِهِمْ وَاتَّقُوا اللَّهَ وَاسْمَعُوا وَاللَّهُ لَا يَهْدِي الْقَوْمَ الْفَاسِقِينَ (5 :106-8)
Believers! When death approaches someone among you, and he is making a bequest, the testimony will take place in a way that two just men from among you will act as witnesses, or if you are traveling and the calamity of death overtakes you, then two just men from outside you should discharge this responsibility. Detain them [ – the two just Muslims –] after the prayer, and then if you have any doubts, they should swear by Allah: ‘We will not accept any price for this testimony even if some kinsman offers it, neither will we hide this testimony of Allah. If we do this, then we would be among the sinners’. But if it becomes known that they have proved dishonest, then let two others stand forth in their places from among the people who have been deprived of their right by these two witnesses; then they should swear by Allah, saying: Our testimony is truer than theirs and that we have not trespassed [beyond the truth] in our testimony. If we do this, then we indeed should be among the wrongdoers. In this way, it is more likely that they will bear true witness or at least they will fear that their testimony may get refuted by that of the others. [Do this], and fear Allah and listen and [remember that] Allah never guides the evil-doers. (5:106-8)
In these verses, believers are directed about their wills and bequests with the same stress and emphasis as they are in matters of loan and other transactions. A summary of these directives is presented below:
1. If death stares a person in his face and he has to make a will regarding his wealth, then he should call in two just witnesses from among his Muslim brethren.
2. If death approaches him during a journey, and two Muslim witnesses are not available there, then as a last resort he can call in two non-Muslim witnesses.
3. If there is a possibility that those selected from among the Muslims as witnesses might show some bias to someone by altering their testimony, then as a precautionary measure, they can be held back after a congregational prayer in the mosque and be asked to swear by Allah that they will not alter their testimony for some worldly gain or in partiality of someone even if he be their close relative, and, if they do some alteration, then they will be sinners.
4. The witnesses should know that this testimony is ‘شهادة الله’ (the testimony of Allah). So even if they are dishonest in the slightest way, it would mean that they are dishonest not only to their brethren but also to the Almighty.
5. In spite of this, if it comes to surface that these witnesses have shown bias to someone contrary to the will made by the deceased, then two people from among the brethren of the person who has become the victim of this injustice should stand up and swear that they are truer than the previous witnesses; that they have not committed any excess in this regard and that they will be wrongdoers before the eyes of Allah if they do so.
6. It is likely that after this further measure, the witnesses will not give a false testimony for they will have the fear hovering over them that if they commit any wrong, others will negate their oaths and in spite of being given preference, their oaths will be refuted.