Addendum to 'Cosmopolitan Fiqh' Post
In 1980, the Council of Islamic Ideology of Pakistan initiated the first comprehensive report comprising proposals for making the economy Shariah compliant with special emphasis on elimination of riba'a from the banking system. The report is considered by many as the first consensus-driven approach towards a combined 'intrusion' of pseudo-modernist and traditionalist scholarship into the realm of classical fiqh and far ahead (atleast in Pakistan). Though it is never taken as such by the religious circles, it can easily be understood as a valid conceptual attempt at exercising ijtihad in modern times.
This and many such attempts later cannot be circumscribed within the bounds of any traditionalist methodology. The content (which is coming up lately in copious amounts and would continue to expand quickly in future as well) do not belong to hanafi, shafii, maliki, hanbali, zaidi or ja'afri literature but equally belongs to a genre of 'Islamic jurisprudence literature'. If these attempts are analysed in detail keeping traditional jurisprudential methodologies in perspective, it is not difficult to realize that though many opinions of the classical scholars pose difficulties to solve complex contemporary problems (especially in the fields of modern economics), there are as many opinions from the past which may lead us to smooth solutions as well.
One of the valid illustration of this inevitable as well as methodological 'pick and choose' approach is a comparison of opinions between Imam Abu Hanifa and Imam Malik in identifying bare minimum rights of people in relation to public law when they make promises among themselves and fail to keep those due to various reasons. The question in consideration is that how to quantify liability if a person promises to buy all the products of my factory and refuses when the products are manufactured. In pre-modern times it was considered impossible to assess minimum identifiable liabilities in such deals. Abu Hanifa held that such promises though considered binding by Shariah cannot be represented in a court of law in case one refuses to keep them. The justice will be served on the day of judgement as Allah has promised. Malik on the other hand asserts opposite and considered subjecting such a person to court of law with the condition that he completely understands the implications of his promise for instance an incurred financial loss to other party in case of dishonoring the terms decided.
It is needless to say that Abu Hanifa's opinion doesn't hold good as far as modern commerce & trade mechanisms are concerned. The process that begins from memorandum of association, continues through details of various forms of capitals that a firm requires and other nitty gritties of corporate liabilities is a simple promise between two persons if we try to analyse it from the lens of a hanafi jurist. On the other hand Malik's opinion, if considered in detail, may give us leads to exercise ijtihad in modern times when a usual promise may be one between a hundred thousand persons and a 'fictitious person'.