ابن محبوب

There are legitimate criticisms of Islamic finance institutions, but some important distinctions are being overlooked. Sukuk are not a single financial product. They can be structured through Ijarah, Mudarabah, Musharakah and other contracts, each governed by different Shariah principles. Crucially, we must understand why certain Sukuk were criticised. Much of the criticism concerned capital guarantees in particular investment structures. A fatwa addressing contractual defects prevalent at the time does not automatically apply to every Sukuk, particularly where those defects are absent or the structures have since changed. Three important juristic principles are relevant here: الحكم على الشيء فرع عن تصوره: A ruling requires properly understanding the transaction. We cannot judge all Sukuk as though they share the same structure. الحكم يدور مع علته وجودًا وعدمًا: A ruling follows its underlying legal cause. We must establish whether the defect prompting prohibition exists in other structures. تغيّر الفتوى بتغيّر مناطها: A fatwa may change when the underlying facts upon which it was based change. Furthermore, العبرة في العقود للمقاصد والمعاني لا للألفاظ والمباني establishes that contracts are judged by their substantive realities, not merely their names or outward forms. Economic resemblance to conventional finance does not, by itself, establish that a transaction constitutes riba. That requires examining its actual contractual structure, ownership and liabilities. As for Commodity Murabahah, there are legitimate scholarly objections to organised Tawarruq, but this must be distinguished from other forms of Murabahah and Tawarruq that may be permissible. Similarly, sale and leaseback is not prohibited in every form. Its ruling depends on genuine ownership, the allocation of liabilities, the contractual conditions and any repurchase arrangements. Nor is it accurate to suggest that scholarly criticism achieved nothing. Criticism of certain Sukuk structures contributed to changes in AAOIFI's standards, even if questions remain about implementation across the industry. Criticism is welcome, and the industry's practices are not flawless. However, declaring that Islamic finance has rendered Shariah and its scholars irrelevant is a sweeping conclusion that overlooks these important juristic distinctions.