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Rulings of Employment in the Finance Industry in the USA

Dr. Main Khalid Al-Qudah

Member of AMJA fatwa committee

Part Three

Translated by Osamah Salhia (B.A. al-Azhar University)

 

Chapter Three

The Ruling of Working in this Field (continued)

Permissibility of an Act Forbidden in itself Due to Necessity

The previous section concluded that interest dealt by corporations in the financial industry in the United States is riba al-nasee’a, which is prohibited in itself. The significance of defining the degree of prohibition lies in the application of a known fiqh maxim that states:

“A Matter prohibited in itself is allowed on the basis of necessity (daroora), and a matter prohibited for another cause is allowed on the basis of need (haja)”[1](al haram li dhatih tubehuh al daroora wa al haram li ghayrih tubehuh al haja).

Ibn Taymiyya said:

“Matters prohibited based on the dhara’i maximare allowed in the presence of outweighing benefits”[2].

Needs and outweighing benefits (maslaha rajiha) will be addressed in the next section.

The type of necessity intended here is the specific implication of the term by the fuqaha’. The inference of necessity by the scholars of Usul al-Fiqh is in general terms. That is, it does not need to be confirmed in every individual case in order for it to be instated to allow prohibitions. Hence, its focus is the general principles that preserve faith, human life, intellect, wealth and heredity. This is not the type of necessity examined here.

The scholars of fiqh use necessity (daroora) in two ways:

1)    Necessity in its general indication: This has the same definition as need (haja), and it does not entail making a matter prohibited in itself (haram li dhatih) permissible, as will be addressed.

2)    Necessity in its specific implication: This is the focal point of discussion in this section[3].

 

Al-Suyuti defined necessity in its specific implication:

“For one to reach a point that if he does not perform the unlawful, he will near death or in fact die. This condition allows one to perform the unlawful”.(al-Suyuti)

The practical application of this when addressing employment in the financial industry is that if a Muslim aggressively searches for lawful employment options, and follows all leads even outside of his locality, but fails to find an opportunity, and is overburdened by financial responsibilities that make him certain he will not be able to cover his basic needs and the needs of his dependents, at that point he may engage in any job until his necessity ends.

There are a number of important clarifications that must be mentioned here:

1)    Considering necessity in its specific implication requires that it be dealt with on an individual basis. It is improper to generalize the ruling or to presuppose that the outlets to halal jobs are indeed absent. An individual must confirm his situation with a reliable and God fearing scholar. If the scholar allows him to work in this field, he may proceed, and if he does not he must refrain.

 

2)    It isn’t required for the necessity to be imminent; it is sufficient for it to be highly probable. However, it should be noted that there is a big difference between a plausible necessity and one that is merely presumed. The signs of a presumed necessity aren’t evident, and it can be a figment of one’s imagination or a whisper from the devil. A plausible necessity is when one loses his job and his savings are dwindling. He is actively searching for a job, but realizes it won’t be easy, and it isn’t convenient for him to borrow money from someone until he finds a job. In such a case, he isn’t required to wait until his savings are depleted; he should work in any available job before reaching such a condition. Holding people to standards beyond this would be burdening them with more than they can handle.

 

Imam al-Zurqani espoused the same view in his fiqh commentary in the chapter of foods:

“Necessity is when there is certain or highly probable fear of death. It isn’t required for one to be on the brink of death”. (al-Zurqani)

Clearly, this sound understanding dictates that high probability, which is measured according to one’s own knowledge and experience, is sufficient to apply the rulings of necessity.

3)    If a Muslim holds an unlawful job position, he should not depend on it; it is incumbent that he continues to search for a halal alternative.

4)    If a repentant Muslim holds an unlawful job position, he is not required to immediately leave if it is his only source of income. Otherwise, it would be obligatory for him to leave that position immediately.

5)    In a case where it is allowed for a Muslim to work in this field, he can only spend as much as is needed to alleviate his necessity (daroora) or even his need (haja) and that of his dependents; by no means is it allowable for him to spend more than that. In fiqh, it is established that needs are treated as necessities in allowing prohibitions. However, in order to apply this maxim, necessity (daroora) needs to be initially present. That is because the matter is prohibited in itself (haram li dhatih), and hence,only permitted by necessity.

Imam al-Juwayni extensively addressed this issue when addressing what is permissible for a Muslim to take if prohibitions become prevalent and outlets to halal are limited:

 “This section is based on a situation where unlawful practices become dominant and people across the globe do not find an alternative location with lawful practices…In such a case, it is incumbent that one limits himself to his needs, and it is prohibited to live in any type of luxury…The ruling remains the same even if the inhabitants of an area with unlawful practices are unable to relocate, and are large in numbers, and it is presumed that if they limited themselves to the basics of livelihood, they will not be able to prosper; they too must limit themselves to fulfilling needs…”[4] (al-Juwayni)

The words of Imam al-Juwayni are clear in that the presence of necessity is required, and in that case it is permissible for one to acquire the amount that will fulfill his needs, and it is impermissible to engage in any form of luxury.

6)    Since one can only take a position with unlawful practices to fulfill a necessity or a need, he must discard the rest of the income and give it to general Muslim causes. Nonetheless, it is hopeful that he will be rewarded for his pleasant intention of discarding unlawful wealth from his possession.

Permissibility of Haram li Ghayrih Due to Need

The scholars of Fiqh have defined a need (haja) as a necessary element in order to consider ease in mitigating circumstances in which the benefit (Maslaha) is lost. If such a need is not considered, a great deal of hardship will befall the public. (al-Shatibi p. 9 vol. 2)

Commonly, the fuqaha’ offer in this regard the examples of transactions allowed by Islamic law contrary to the general rule.

Imam al-Suyuti explained the maxim, “A need is dealt as a necessity whether it is general or specific”(al haja tunazl mnzilata al daroora 'amatn kant au khasah):

“An example of a general need allowing otherwise unlawful transactions is the permissibility of renting goods and hiring services (Ijara), ja’ala,  debt transferring (hawala) and other transactions which have been allowed contrary to the general rule…And an example of a specific need is repairing vessels by welding them with silver (tadbeeb)”. (al-Suyuti , 62)

It is apparent that considering a need as always being a cause of ease is an overstatement that should not be generally applied. That is, it is impermissible for an individual to engage in unlawful practices just because of common difficulties; there must be explicit consideration of the specific circumstance by Islamic law via textual evidence or an apparent analogy (qiyas jaliy) in order for this maxim to be regarded. Thus, the axiom “A need is dealt as a necessity whether it is general or specific” is merely referred to in the context of setting the framework for Islamic rulings and conveying the cohesion of its legislations.

Consequently, this axiom is an axiom of Usul al-fiqh, not a Fiqh maxim[5]. Meaning, it isn’t essential for need (haja) to be present in individual cases in order for renting goods or hiring services (Ijara) and salam[6] to be allowed; rather, these transactions are deemed permissible from the outset. Therefore, need (haja) in the maxim denotes a general, consistent cause that Islamic law has regarded to establish specific rulings and exemptions (rukhsa), and it is not a nebulous concept.

In explanation of the maxim, “General matters cannot be rendered analogous to a matter established contrary to the general rule” (ma thabata `ala khilafi al-qiyas fa ghairuhu `alaihi la yuqas), Imam al-Ghazali expounded:

“The second category refers to matters of an analogous nature (i.e. the reasoning for exemption is evident) that are exempt from a preceding rule. All other matters that are analogous to the exemption but have the probability of falling under the rule are in fact exempt based on analogy (qiyas). For example, the sale of al-‘Araya[7] did not abrogate or overturn the regulations that define interest; it was simply an exemption from the general rule. Grapes were deemed analogous to dates, and if there weren’t any indicators to the soundness of such an analogy, we would not have dared to append its ruling”. (al-Ghazali)

In this excerpt, Imam al-Ghazali establishes that drawing analogies between non-textual based needs (haja) and textually established needs should not be loosely applied. In fact, this can only be applied when there is apparent reasoning for the exemption, which would deem it of an analogous nature. Hence, he mentioned the analogy of grapes and moist dates. This analogy would entail the permissibility of selling grapes in exchange for a larger volume of raisins, because they are storable goods or because they are fruits.

Ibn Hajar mentioned this in his commentary on the hadith of al-‘Araya:

“The Salaf have differed as to whether grapes and similar fruits are analogous to moist dates in the ruling of al-‘Araya. It was said that they are not analogous, and this is the opinion of the Dhahiris and some Shafi’i scholars. It was also said that all storable goods are analogous to moist dates, and this is the opinion of the Maliki scholars. Some held that all fruits are analogous to it, and this opinion is referenced to Imam al-Shafi’i”. (al-'Asqalani)

Every reason mentioned by Ibn Hajar can be referred to as an apparent, consistent cause that can suitably be linked to the fiqh verdict. Hence, the presence of need is not the only cause of this ruling, as is apparent.

Ibn Qudama sums up this conclusion in the context of addressing public interest (masalih mursala) after mentioning examples of needs (hajiyyat) and luxuries (tahseeniyat):

“We do not know of any difference of opinion regarding the impermissibility of clinging to these two categories without any textual basis. If that was allowed, it would entail legislating laws based on conjecture, and it would downplay the need for sending messengers. Such a dynamic would place the layman on the same footing as a scholar, because everyone knows his own personal benefit”. (al-Maqdisi)

That being said, the axiom that states, “A matter prohibited in itself is allowed on the basis of necessity, and a matter prohibited for another cause is allowed on the basis of need or outweighing benefit” is more of a Usul al-fiqh axiom than a fiqh maxim. Also, the application of the axiom in terms of needs is limited to needs that are textually based and analogous in nature.

The previous section established that the financial services available are usually on the basis of riba al-nasee’a, and hence, they are only allowed in cases of necessity. The only issue that remains to be addressed is if jobs with a lower grade of prohibition (i.e. prohibited due to other matters - haram li ghayrih) can be allowed on the basis of need (haja).

As previously mentioned, not all of the financial service companies offer a variety of services; some specialize in one service such as insurance, for example. It is common knowledge that the various insurance policies are prohibited; however, it cannot be clearly stated that all of these transactions are on the basis of riba al-nasee’a.

For example, in its 2nd annual conference in Jeddah, Saudi Arabia in 1985, the Islamic Fiqh Council, a subset of the Muslim World League, explicated:

“Customer insurance that insurance companies commonly offer contains a great deal of uncertainty (gharar) that invalidates the transaction, and hence, it is unlawful in Islamic law”.

Notice that the Council’s declaration related the prohibition to the degree of uncertainty, not to interest (riba). However, many other fiqh assemblies unequivocally mentioned that both riba al-fadl and riba al-nasee’a are present in insurance policies.

Dr. Yusuf al-Shubilyis a modern scholar who challenged the notion that interest (riba) is present in insurance policies with the exception of life insurance. When discussing the ruling of insurance and the evidences mentioned by those who prohibit, he said:

“Secondly it is presumed to contain interest because an insurance policy entails a monetary exchange, namely the insurance payments in exchange for the service. This monetary exchange lacks the presence of immediacy (taqabud), and the payment and the compensation are not of equal sum (Tamathul) (Note: These are two regulations for monetary exchanges and the exchange of interest-based commodities set by Islamic law.). Note that life insurance is excluded from the discussion because it contains a fixed interest rate paid to the insurance beneficiary along with the payments made if he lives to the end of the agreement.

This argument is refuted from two aspects:

1.    This agreement is actually a transaction of payments made to the insurer in exchange for a service, which is that the insurer covers losses and damage on behalf of the beneficiary. Hence, the compensation is a service; there isn’t a monetary exchange for one to consider the non-compliance with the regulations of interest bearing transactions.

2.    The insurer does not compensate the customer for his payments per say because in many instances he doesn’t need to make any payout; the insurer is only required to provide coverage when there are specific dangers involved. These payouts are a secondary result of accident coverage. If this is considered interest, every transaction involving a risk should also be considered interest”. (al-Shubily)

Working off of this valid scholarly opinion, if it is in fact established that customer insurance does not contain interest, and if there are some insurance companies that do not offer life insurance, and there is a legally regarded need (haja) to work in this field, I pray that this would be fine based on the maxim that states: “Matters prohibited due to other causes (haram li ghayrih) are allowed on the basis of need”.

The following reasons can be suggested for the opinion that holds it is permissible:

1)    Some insurance companies offer auto repair services, such as the American Automobile Association (AAA). This specific service is void of any interest because the customer is clearly paying insurance for a service, namely auto repair and maintenance. This isn’t considered interest by anyone.

2)    The unlawful element of excess uncertainty (gharar fahish)in insurance policies is less severe than the unlawfulness of interest. Thus, Islamic law has allowed some transactions that contain a degree of uncertainty such as property sales; the condition of the building’s infrastructure may not be known. (A. i. Taymiyya)

In this regard, Imam al-Nawawi said:

“The deciding factor for transactions containing a degree of uncertainty (gharar) is that if its presence is inevitable and can only be avoided by extreme measures, or if it is only present at a miniscule degree, the transaction is permissible. If that is not the case, the transaction is invalid”. (al-Nawawi)

3)    Islamic law has allowed some transactions containing riba al-fadl based on its prohibition being due to other causes (haram li ghayrih). One of these transactions that is widely accepted by scholars and supported by textual evidence is the sale ofal-‘Araya. Another transaction that is more controversial is selling jewelry in exchange for gold or silver heavier in weight. Ibn Taymiyya and his student opposed the scholarly majority on this issue; this issue is not heavily controversial, but nonetheless it is significant.

Ibn Taymiyya -Allah have mercy on his soul- said:

 “It is permissible to sell gold and silver jewelry in exchange for its own type without the stipulation of it being of an equal sum (Tamathul). The increased payout of gold or silver is considered a compensation for the craftsmanship. The payment can either be instant or deferred, as long as it is not dealt as a monetary exchange”.(al-Ba'li)

That is, as long as the jewelry is dealt as a commodity, rather than being a monetary tool. Ibn al-Qayyim strongly defends the opinion of his teacher in his book I’lam al-Muwaqi’een. (al-Jawziya p.140 vol. 2)

4)    Just as there may be a need to have insurance, there may be a need to work in insurance companies. An example of such a case would be if a Muslim cannot find any other halal alternative that would cover his needs, or he may find an alternative that is not suitable for his social status. Such a person can work in insurance companies, but he must only use the amount that covers his needs. He must discard the rest of his income from his possession, not as charity but as a payment to general Muslim causes. Basically, everyone who is categorized as poor and deserving of zakah is allowed to work in insurance companies on the basis of need.

5)    There aren’t any insurance companies that do not offer life insurance, as far as I know. The details presented are merely a theoretical breakdown in case there are insurance companies that do not offer life insurance.

Section Summary

The following conclusions can be made based on the research presented in this section:

1)    The only jobs in the financial industry that are permissible by default ruling are ones involving non-financial services such as auto repair, driver’s education, transportation, telecommunications, selling commercial lumber and building material, edible goods,etc. It is also permissible to work in Islamic banks and Islamic investment. In addition, it is permissible for one to seek an internship in this field for academic purposes, as long as one discards the income earned and gives it to general Muslim causes.

2)    Other jobs that include high or medial level administrative positions, front desk positions, communications, technical support, marketing, human resources, loans, investment, etc. are all prohibited for its own sake (haram li dhatih) because it either directly leads to interest or usually does so.

3)    One can only seek employment in a job position that is prohibited for its own sake if there is an established necessity according to the specific legal implications of the term, or if that necessity is highly probable. Only then can one work in that position to cover his necessities and even his needs, but he must continue to search for a halal alternative.

4)    Under no circumstance is it allowable for one to spend on luxuries (tahseeniyat)when the source of his income is from financial services. He must discard any extra wealth and deliver it to general Muslim causes.

5)    A repentant Muslim is not required to immediately abandon his position as long as he is in dire need of that income. However, he must actively search for a halal alternative, even if it is a lower pay grade.

6)    There is an academic basis for it being halal to work in insurance companies that do not offer life insurance because the other insurance agreements do not contain interest. This opinion is based on the presence of a legally regarded need (haja). 

Research Conclusions

After an extensive analysis of the United States financial industry and the various jobs one can hold in this field, the following matters can be concluded:

1)    The finance industry encompasses a wide variety of financial services that include insurance, banking, mortgaging, credit card services, brokerage and financial advisory. Financial corporations usually aren’t limited to one service; in fact, leading corporations usually offer all available services.

2)    This industry reflects a capitalist economic system, and interest is one of its defining hallmarks; rarely is a financial transaction in this system void of interest. The transaction may directly involve interest, such as one of the various interest bearing loans, or the transaction may initially be void of interest, but either directly lead to it or usually does so, as is the case with credit card companies. Even a non-financial service may lead to interest. There are only a handful of services that do not lead to interest such as currency exchange or the issuance of traveler checks. 

3)    The type of interest dealt in this field is riba al-nasee’a; riba al-fadl is essentially nonexistent.

4)    The jobs available in this field all play supportive roles in completing interest bearing transactions. Employees all essentially deal with interest, even though it is at varying degrees.

5)    Therefore, employment in the finance industry is prohibited for its own sake; it is only allowed in cases of necessity (daroora). Necessity is measured according to its legal implication in fiqh; each case must be assessed individually.

6)    In the event that there is a high level expectancy of necessity, it is permissible to work in this field. However, the Muslim can only use the bare minimal that covers his necessity (daroora) and even his need (haja), because needs are treated as necessities. Any money left over must be delivered to general Muslim causes. It is hopeful that he will be rewarded for discarding unlawful wealth from his possession.

7)    A repentant Muslim is not required to immediately leave a position he holds in this field if he is in dire need of that income; he can maintain that job, but he must limit his use of his income to the bare minimal needed to cover his necessities and needs. That being said, he must continue to search for a halal alternative.

8)    There is no leeway for one to work in this field on the basis of need. Reason being the axiom that states “Needs are dealt as necessities in allowing unlawful practices” is a Usul al-Fiqh axiom, not a Fiqh maxim, and hence, it is in general terms. This particular axiom was established in the context of Islamic law allowing a few specific transactions, although they are contrary to the general guidelines; these general needs are textually established. The only case in which this axiom can be applied beyond this framework is if there is room for valid analogy (qiyas). In any case, qiyas would not permit a matter prohibited for its own sake; rather, it is only applicable in some cases where a matter is prohibited for another cause (haram li ghayrih).

9)    It may be allowed to work in some insurance agencies on a need (haja) basis if it is void of life insurance, and if the scholars establish that it is indeed void of riba al-nasee’a. Reason being Islamic law has allowed some transactions regardless of its potential harms due to need, although they may contain riba al-fadl, because riba al-fadl is prohibited for another cause. Everything that is prohibited due to external factors (Sadd al-dhara’i’) is allowed on the basis of need (haja).

10)                  It is also allowed for one to work in Islamic finance or Islamic investing, whether it is via an independent financial institution or a subsidiary of an interest-dealing institution. However, it is required that a reputable scholar or a scholarly body attests that its dealings are shari’a compliant. It is also allowed for one to pursue an internship in this field if it is for academic purposes. However, he must discard the income from his possession and deliver it to general Muslim causes.

I conclude this research of the financial services industry in the United States praying to Allah, the Beholder of my success; I depend on Him alone and to Him is my return.

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[1] Reference al-Furuq by al-Qarafi (#58)

[2]Majmu’ al-Fatawa

[3]For more details regarding the difference between needs and necessities reference “Al-Farq bayn al-Daroora wa al-Haja” by Dr. Abdullah bin Bayyah (Islamic European Council of Research and Fatwa: 4th and 5th edition of the academic Journal)

[4]Reference a detailed critique of Imam al-Juwayni’s opinions in “Waqafat Hadi’ah” by Dr. Salah al-Sawi page 32

[5]Dr. Abdullah bin Bayyah supports this opinion in his book “Al-Farq bayna al-Daroora wa al-Haja” p. 128

[6]This is a transaction in which the price is paid upfront and the delivery of the product is deferred. It is an exception from the prohibition of selling that which one does not possess. It has been exempt from the general rule because of the great need for it. For example, farmers may not have the money to farm, so this transaction allows them to use the money fronted by the buyer, and they would deliver the product at the time of harvest. (Translator)

[7]This refers to the sale of moist dates on the palm trees in exchange for dry dates, or the sale of grapes still on its vines in exchange for raisins. (Translator)