(1) Claim and Practice:

The Qur’an insists that Muslims should demonstrate consistency in faith and practice and in words and deeds (2:208; 24:51; 30:30; 33:70; 41:30; 61:2,3). It is this basic requirement that has led to the formation of a number of rules in the Sharia to determine and judge the relationship between intention and deed and between claims and acts.

The first legal maxim in this respect reads as following:

* “The basis of every order is the intention thereof a judgement based on an order should follow the intention and purpose of that order” .

The rule embodied in this maxim has been applied by early jurists mostly on acts of rituals, but it is just as equally applicable to other spheres of activity. The liability of a person who finds somebody’s goods lying in the way and picks it up will be contingent upon the intention with which he has picked it up. If he intends to hand it over to the owner and has made it known to others he will be treated as a trustee and will not be required to indemnify the owner in case the property is destroyed while in his possession. But if he has kept it as owner he would be treated as a usurper, Ghasib, and will be required to indemnify the owner in case the property is destroyed. The rule is also amenable to performance of visibly different acts leading to the achievement of the same object. Let us take an example from our own times.

Nationalization of financial institutions in some countries may be the result of political ambitions while in some others it may aim at correcting mismanagement and regulating credit; and yet in some other countries it may be aimed at preventing foreign domination.
Nationalization in socialist countries has a deep-rooted philosophical basis and underlying rationale quite different from the one which prompts nationalization of key industries in non-socialist countries. On the other hand, different actions by different

countries by way of granting rebates on export, making available easy credit to exporters, fixation of import tariffs, laying down licencing procedures and quota restrictions in connection with imports etc., may aim at achieving a common cause of improving the balance of payments position. The relationship between
intention and act could further be elaborated by the following examples:

(A) A man makes an earning:

(1) for the satisfaction of his selfish urges.

(2) for personal consumption and demonstration effects

(3) for complying with the divine command to earn for the sake of survival and spending on noble causes.

In all above cases the act is the same but the intention/object is different.

(B) A man may grow and sell grapes to the consumer or to the manufacturer of wine.

(C) A farmer may grow poppy for sale of seeds or to prepare opium or drugs. In all these cases it is the intention that determines the legality or illegality of the act of an individual.

The same is also true in the case of public policies. Inscription of sacred words on coins may intend to symbolize a distinctive feature or the inscription may be desecration of sacred words. The former may be acceptable but the latter would be treated to be offensive.

In short it is the intention of the government in carrying out an act or in making policy that matters.

The relationship between an act and intention could take the following forms.

(1) Acts/policies that are good in themselves and are actuated by good objectives/intentions. For example, a government might seek to promote public welfare through Zakat and charity funds, donations, government revenues and just and equitable taxes.
(2) Acts and policies that are not good in themselves but are resorted to for achieving commendable objectives. The instances that immediately come to mind are winking
over smuggling in order to allow some people to earn their livelihood or mobilising funds for charity by means of games of chance and by floating interest-bearing
loans and bonds.
(3) Acts and policies that are actuated by objectionable intentions but lead to good results. An example is the nationalization of an industry or of an industrial unit
with a view to harassing or black-mailing one’s political opponents but the step might result in providing job security to workers, reduction in the prices of products,
elimination of cut-throat competition and waste, and standardisation of the products and avoidance of incongruent growth of industry.
(4) Objectionable intentions with objectionable policies. The example is conniving at smuggling of wine into the country for use by Muslims.*

It will be found that form No. 1 (good acts with good objectives) is an ideal situation and has to be pursued. Form No. 4 is to be rejected outright. In Nos. 2 and 3, the government has to make amendment of policy in the former and of objective in the latter. It should be noted that the announced phraseology of the policy sometime betrays the implicit objectives. The government may announce its policy of providing a house to each shelterless family but in practice it could be inaffordable by a shelterless man. It is actual acts and policies rather than proclamations that determine the intention. This is so because of a sub-rule which governs contractual obligations.

** “Contracts are to be understood in relation to their intention and substance, not by the words and phrases used’ so a bay bi ‘l-wafa’ will be held as a mortgage”.

Suretyship (kafala) implies coextensive liability while transfer of debt (hawala) implies discharge of the principal debtor. If a contract of transfer of debt (hawala) is made with the condition to hold the principal debtor liable in case the transferee fails to discharge the debt, contract even though termed as a contract of hawala will be treated as a contract of kafala, suretyship. Similar will be the treatment of a contract of kafala in case the principal debtor is discharged after contract of surety ship is signed.

In case a government issues a licence to set up an industry, or start a trade or import some merchandise it will not be lawful to sell the licence because the object of the licence was the authorization to set up an industry or trade or purchase of goods but not to make the licence itself an article of trade.

Likewise if the banks declare their policy of financing their clients on non-interest bases it would be necessary to do so and not merely continue the same practice and seeking to rationalize it in Islamic terms by changing the relevant nomenclature such as calling it “buy-back” or “mark-up”.

It will not be permissible for the banks to practice Shirka and Mudaraba in such a way as to ensure a fixed rate of return for the banks while the liability of bearing loss or an uncertain amount of remaining profit is transferred to the working partner.

To take another case, if the government allots plots of land to individuals with the object of providing accommodation for themselves the allotted will be violating the implicit terms of the agreement by converting it into a commercial or industrial site or by treating it as merchandise.

In case the government allots agricultural land to a farmer for the purpose of cultivation, the land will have to be used for the purpose for which it was allotted. This allotment will not confer absolute right authorizing the allottee to claim the royalty of sub-soil wealth if it has been found on exploration, nor will he be allowed to convert it into a forest or a commercial or residential area because these objectives are not covered under the terms of allotment. Authorizing the possession and use would not be stretched to imply a use which the owner does not intend to allow. Leaving land unused deprives the allottee his right over land.