AI-Hilah al-Fiqhiyyah: Konsep, Kedudukan dan Pemakaiannya dalam Muamalat Pemiagaan Semasa

Throughout its history, the development of Islamic law witnesses the encounter between the injunctions of the texts the Qur an and the Sunna with the popular practices and norms in various fields of life. In the situation where the contradiction is so obvious, that is to say, when the unambiguous texts confront the popular practices and customs, the solution is easy and straight forward, the command of the texts must prevail without slightest doubt. Nevertheless, there have been many instances in the past and at present where certain practices do not directly contravene the literal meaning of the texts although, implicitly, seem to be quite doubtful. In this situation, the Muslim jurists encounter difficulty in ascertaining the legal status of the practices. It will become more complicated when those practices are associated with the interest of the people. Within this scenario, there appear many juristic terminologies and mechanisms such as rukhsah shar iyyah, maslahah, hilah fiqhiyyah and so on and so forth. It is very important therefore to analyse and identify these concepts and their status in Islamic law as well as the way and the extent of their implementation in the contemporary practices. Only one of these mechanisms has been chosen namely al-hilah al-fiqhiyyah. From the discussion presented in this paper, it is maintained, that the concept of hilah itself is a neutral concept, although from the first glance it looks very suspicious. It could be used for negative purposes thus make it prohibited or positive purposes thus render it as permissible. In the contemporary business practices, the hilah as a legal stratagem has been widely used by many Islamic financial institutions. We propose that although to certain extent the justification for the judicious, cautious and limited use of hilah by modem financial institutions are tolerable, but in the long run, it is strongly urged that they have to find a solution where all the explicit and implicit meaning of the texts can be fully observed.