THE SALE OF TRADE MARKS, TRADE NAMES AND THE FRANCHISE SALES Trade Marks In their attempt to legalize the sale of trade marks and trade names, the liberal Molwis contend: “In the present age, among the questions pertaining to commerce, the most important issue is the buying and selling of trade names and trade marks. These kinds of trade marks are registered by the government. These trade marks have become valuable things to traders. They buy and sell these trade marks and trade names. Is this buying and selling permissible?” Answering his question, the copyright Molwi says: “Since a trade name or trade mark is not a tangible object, but is a haqq-e-mujarrad (an abstract right), it is beyond the definition of maal (tangible assets) which has been presented by Allaamah Shaami and others, hence its sale is not permissible. But, in the discussion on maal, I have preferred the definition of the Author of Badaai’, and besides the Ahnaaf, of the other Jamhur Fuqaha. Their definition takes precedence. In terms of this definition (of Badaai’ and the other Fuqaha of the other Math-habs), the definition of maal will also apply to trade marks because in reality benefit is derived from this right (trade mark). And, this is also permissible according to the Shariah. Furthermore, in the urf (prevalent practice and custom) it is considered to be maal (tradable commodity) hence it is being sold and bought. Thus, its sale is permissible.” The contention that wheeling and dealing in trade names are today the most important commercial issue among all the issues of trade and commerce, is to say the least, amusing. Anyone who is cognizant of the commercial scenario, will know that the claim made by the Molwi Saheb is grossly exaggerated. The issue of trade name is not the most important of all commercial issues. In this averment, the Molwi Saheb has in entirety set aside or discarded the Hanafi standpoint which Allaamah Shaami and the other Hanafi Fuqaha have spelt out very clearly and which the copyright Molwi concedes. The clarity of the Hanafi view on the sale of even valid 106 huqooq, has driven the copyright Molwi to concede that according to the Hanafi Math-hab, trade mark is not a tradable commodity in view of the fact that it is not a tangible item. He has been constrained to cite the Hanafi viewpoint as stated by Allaamah Shaami. However, since the Molwi Saheb had mentioned in the beginning of his paper which he had submitted to the Fiqh Academy, that he shall confine his discussion within the parameters of the Hanafi Math-hab, he had no alternative but to sustain this impression inspite of him having transgressed the bounds of the Math-hab which he purports to be a muqallid of. From the innumerable kutub of the Ahnaaf Fuqaha, he could manage only to cite from one kitaab, viz. Badaai-us-Sanaai’, in his endeavour to prove that trade mark is tradable commodity (maal) even according to the Hanafi Math-hab. Badaai-us Sanaai’ is one of the most authoritative Books of the Hanafi Math-hab. Its author is the illustrious Allaamah Kaasaani (rahmatullah alayh). In his mind, the copyright Molwi believes that Allaamah Kaasaani has also upheld the notion of abstract entities being maal. But this notion is utterly baseless. Badaai-us Sanaai’ makes in abundantly clear that the definition of maal and the views of Allaamah Kaasaani on this issue are in perfect consonance with the concept and rulings of the Hanafi Fuqaha, right from Imaam Abu Hanafi (rahmatullah alayh). The copyright Molwi has distorted and misinterpreted the definition of maal given by Allaamah Kaasaani in Badaai-us Sanaai’. He quotes the following extract from Badaai-us Sanaai’: “And our proof (for the permissibility of selling dogs) is that a dog is maal, hence it is a substratum for sale such as a falcon and a hawk. The daleel for it being maal is that benefit can actually be derived from it– such benefit which is permissible according to the Shariah. Hence it is maal. The proof that deriving benefit from it according to the Shariah is permissible, is that it is used for guarding property and hunting.” Commenting on this, the copyright Molwi says: “In Badaaius Sanaai’, Allaamah Kaasaani narrated a number of examples from which it is clear that if something is beneficial according to the Shariah, then it is maal, and its sale is permissible. And, if according to the Shariah, deriving benefit from it is not permissible, then it is not maal.” 107 From Allaamah Kaasaani’s definition of Bay’ (Sale), the copyright Molwi has concluded that maal is anything in which there is lawful benefit, be it tangible or intangible—physical or an abstract entity such as a right. The manner in which he presents Allaamah Kaasaani’s definition, conveys the impression that according to the illustrious author of Badaaius Sanaai’ even abstract rights and benefits (intangible things) are maal. But this conclusion is baseless. Allaamah Kaasaani no where even alludes to this idea. The copyright Molwi has extracted the term intifaa’ (to derive benefit) from the definition, and fixed it as the determinant or criterion for maal. Hence, anything in which there is benefit is maal. On the basis of this conclusion, the manfa-at (benefit) of occupying a building is maal. The benefit of riding in a vehicle, the benefit of a hired machine, the benefit derived from a permit and many similar rights are all maal. Since there is monetary benefit for the author in copyright, hence it is automatically maal (tradable commodity) in the opinion of the copyright Molwi. In formulating this theory on the basis of intifaa’ (deriving benefit), he has contradicted Allaamah Kaasaani who does not define maal as just anything, be it an abstract right, merely on account of the attribute of intifaa’. In Kitaabul Buyoo’ of Badaaius Sanaai’, Allaamah Kaasaani gives many examples of a variety of sales. Abstract rights do not form the subject of sale in even one of the numerous examples the Allaamah presented. Every example is a sale in which a physical item is being sold. Not a single sale of the numerous examples mentioned by Alaamah Kaasaani pertains to manfa’at (benefit). Allaamah Kaasaani is in harmony with all the Fuqaha of the Hanafi Math-hab in the definition of maal. On page 140 of Badaaius Sanaai’, Vol.5, he states: (A condition for the validity of bay’—sale) is that the subject of the bay’ should be maal because, Bay’ is the exchange of maal with maal.” All the Hanafi Fuqaha define maal as physical objects, not abstract rights and benefits. The condition of intifaa’ which Allaamah Kaasaani as well as the other Fuqaha-e-Ahnaaf stipulate pertains to benefit of tangible objects. The condition is not mentioned in the context of manaafi’ or huqooq. Allaamah Kaasaani and all the Hanafi Fuqaha make a very clear 108 distinction between manfa-at and maal. Inspite of a house having the benefit of living therein, the Fuqaha, including Allaamah Kaasaani, do not assign this intifaa’ to the category of Bay’. They clearly define it as Ijaarah (Leasing) in which the subject on which the agreement is transacted is called manfa-at, not maal. No where in the kutub of the Ahnaaf, including Badaaius Sanaai’ will it be found that huqooq and manaafi’ (rights and benefits) have been described as maal. The Hanafi Fuqaha unanimously describe maal as tangible commodity – material or physical things which can be stored for future use. Along with the attribute of Intifaa’ (derivation of benefit), the Hanafi Fuqaha, including Allaamah Kaasaani, stipulate Id-dikhaar (storing for future need) as an imperative condition for maal. No one, not even the copyright Molwis, can deny the irrefutable reality of maal being material commodities according to the Hanafi Math-hab, hence, the Molwi Saheb, begrudgingly concedes: “Hadhrat Allaamah Shaami, citing from Al-Bahr, defines maal as ‘something to which the natural disposition inclines and it can be stored for a time of need. After presenting this definition, Hadhrat Allaamah Shaami, citing Talweeh, excludes manfa-at from maal. Hence he wrote: ‘Manfa-at (benefit) is mielk (i.e. being a person’s property- in one’s ownership). It is not maal.” Commenting on this definition on which there is consensus of the Hanafi Fuqaha, the copyright Molwi, once again grudgingly concedes: “On the basis of this definition, many things are excluded from maal whereas people consider these things maal and trade in them, e.g. vegetables are maal (but in terms of this definition it is not maal). During the era of the Fuqaha, vegetables were commodities in which people traded. No one has ever claimed that buying and selling vegetables are not permissible, inspite of the fact that vegetables cannot be stored for a time of need (as the definition demands), even though in this age of technological progress, vegetables can be preserved temporarily in cold storages for a few days. But in the olden days its preservation was not possible. Similarly, bitter medicine is something to which the natural disposition does not incline, inspite of it being accepted as maal. In the same way, 109 while many things are not maal, they are included in the definition of maal, e.g. liquor. The natural disposition inclines to it and it can be preserved for later use. But inspite of this, it is not termed maal. For this reason the aforementioned definition of maal (given by the Fuqaha of the Hanafi Math-hab) is not correct according to me.” Before we proceed to demolish this ludicrous trash which the copyright Molwi has gorged out, it is necessary to say that if this Molwi Saheb is downright stupid, the Fuqaha were not. His arrogance and puffed up pride on account of his smattering of ‘knowledge’—book knowledge—is akin to the knowledge which shaitaan possessed and which he used to impart to even the Malaaikah in bygone times when he was dwelling in the lofty heavenly realms. This Molwi Saheb is here shamelessly claiming that all the Hanafi Fuqahaa from Imaam Abu Hanifah (rahmatullah alayh) right down to the present century, among whom were innumerable illustrious Stars of Islamic Uloom, the likes of whom the world will never again see, have adhered to an incorrect definition of maal while he has stumbled on the correct concept and definition of maal. For 14 centuries, all the Hanafi Fuqaha and Ulama were dwelling in the darkness of error while this Molwi in this belated age with his superficial outward veneer of textual glimpses has discovered the fourteen century-old Hanafi error and has now accomplished the feat of correcting an error which all the Hanafi Fuqaha and Ulama of the past centuries, including Imaam Abu Hanifah (rahmatullah alayh), were blissfully unaware of. May Allah Ta’ala save us from such Talbees-e-Iblees (confusion and deception of Iblees). Let us set aside this emotional digression and return to a factual demolition of the stupidities uttered by the copyright Molwi. First stupidity Vegetables are maal inspite of the inapplicability of the Hanafi definition of maal to it. His assertion is that technically it is not maal because it does not satisfy the condition of id-dikhaar (preservation/storing) for a time of need. While vegetables can be stored for a ‘few days’ in freezers and cold storages due to technology in the present age, it was impossible to 110 preserve vegetables in the olden days. It truly embarrasses us to descend to this low ebb to answer and refute a contention which any layman who is bereft of Shar’i Uloom is able to accomplish. Vegetables, fruit, meat, etc. can today be preserved for years by a variety of processes. One need simply look at the expiry dates printed on labels of canned and frozen foods. Where did the Molwi gain the idea of the limit of a ‘few days’ in this age, is a mystery which only he can unravel. His claim that preservation of vegetables in the olden days was ‘impossible’, is plain bunkum which is not expected of a man of Ilm. Vegetables, meat, fish, etc. were preserved for months and even years in even the olden days, also by different processes, e.g. drying, salting, sweetening, addition of certain substances. We are sure that the Molwi Saheb is aware of homemade pickles and the like which his mother and grandmother preserved for more than a year in jars without the aid of modern technology. In the event of the Molwi Saheb being unaware of the preservation techniques adopted by his grandmother, we are constrained to refer him to the ‘fatwas’ of the western capitalists for whose views he displays an inordinate penchant. Encyclopaedia International, Vol. 7, page 246, discussing food preservation states: “Early man was bound to his food supply and had to move with it according to the seasons. He had little independence from the supply because without it he starved. Until he learned to preserve certain items from time of plenty through time of need, he was unable to move in localities that could not satisfy all his food needs. He learned to sun and air dry grains to preserve them against molding and insect damage. An outstanding example of this was long-term storage of grains in ancient Egypt. Primitive man learned to sun-dry fruits and vegetables and to dry and smoke meat over a fire. He learned to preserve fruit products by fermenting them into wines and vinegars; he fermented milk into curds and cheeses and preserved certain vegetables by lactic acid and fermentations. Gradually, over centuries, these food preservation methods were perfected through trial and error until they became standardized procedures.” There is much more information which the copyright Molwi can glean from the books of the western capitalists whose causes and concepts he so ardently espouses, even to the extent of refuting the viability and correctness of the arguments, principles, definitions and spirit of the 111 fourteen century Shariah so beautifully structured by the Hanafi Fuqaha on the foundations of the Qur’aan and Ahaadith. And, all this leaning over backwards to the degree of tilting over, is in the pursuit of finding Shar’i sanction for the reprehensible, selfish, monopolistic, unjust and unfair economic riba practices of a people in whose minds their destiny’s limitation is this ephemeral existence, and nothing beyond its confines. This is indeed too silly an argument to rebut intelligently. An emotional dismissal of this stupidity is more than adequate. Encyclopaedia dissertations and ingenuity are not necessary requirements to understand the meaning of the condition of id-dikhaar (to preserve) which the Fuqaha have stipulated in the definition of maal. The act of ‘preservation’ or being able to store for need, is not conditioned with any time limit. Every item of maal has its own life of preservation. The id-dikhaar attributes of the vast multitude of physical objects described as maal, have their own points, degrees and limits of id-dikhaar, just as different liquids have their own respective boiling and freezing points. Even the different kinds of vegetables have different life spans. While a tomato will remain in good state for weeks from the time it is picked, a potato lasts for months. If the life span of vegetables is shorter than the lifespan of rice and grain in general which can last for years without any chemical treatment, and if grain has a shorter lifespan than timber, it does not follow that ‘preservation’ of vegetables, etc. was ‘not possible’ in the olden days. Whether a tangible object has a lifespan of an hour, a day, a week, a month, a year or decades, they all enjoy in common the attribute of id-dikhaar which is a relative characteristic with regard to the vast number of objects in Allah’s creation. A person buys a loaf of bread and its attribute of id-dikhaar enables him to utilize it in his time of need (when he is hungry), for which purpose he has acquired it. The same explanation applies to all other things he procures for his sojourn here on earth. Allah Ta’ala has given each item of maal its own property of id-dikhaar which differs in time limit and degree from that of other items and products. It is, therefore, plain stupidity to deny the glaringly obvious truth that vegetables in the olden days, besides having their own natural property of id-dikhaar, 112 which varies from days to months, could be and were in actual fact preserved for years by artificial methods of preservation. Thus, this ridiculous argument of the copyright Molwi is devoid of any sensible substance, leave alone Shar’i substance. Since id-dikhaar for the imagined ‘many things’ without id-dikhaar, do exist in all these products, they come fully within the purview of the definition which the illustrious Fuqaha, including Allaamah Kaasaani, have coined for maal. The Second Stupidity In the attempt to negate the Hanafi definition of maal, the supposedly Hanafi copyright Molwi claims that bitter medicine, inspite of being acknowledged as maal, the natural disposition (tabiyat) of man does not incline to it. Hence, the definition of maal is not applicable to it although it is maal. His exercise is a despicable attempt to illustrate the ‘flaw’ of the Hanafi definition of maal. One of the attributes of maal according to the Hanafi Math-hab is that the tabiyat should incline to it. What the Molwi is trying to convey is that since the tabiyat does not incline to bitter medicine, the Hanafi definition is neutralized because bitter medicine is regarded as maal without any difference of opinion. It is quite apparent that the Molwi Saheb has not understood the meaning of inclination of tabiyat (disposition). If a person is not inclined to bitter medicine, what constrains him to take it? Inclination in the context of the technical definition of maal does not necessarily mean lustful or instinctive desire. The inclination in this context refers to both aqli (intellectual) and tab’i (natural) dictates. Insaan (the human being) is not a beast of the jungle which operates purely by instinct. Insaan is distinguished with Aql (an intelligent mind). The Mu’min insaan’s inclination is regulated by his intelligence as well as by the Shariah and by his instincts. Whether he inclines to something by virtue of his natural instinct, natural intellect or the demand of the Shariah, it will be entirely correct to say that he has inclined to the thing. The Hanafi definition of maal does not restrict inclination to man’s instinct. 113 The fact that he pays considerable money for the bitter medicine and that he takes it voluntarily and with satisfaction, testifies for the presence of mailaan (inclination) even if the inclination is not instinctive. Bitterness, sourness and saltlessness do not negate inclination. The attribute of inclination differs considerably in different people. For some people cheese is a delicious food item, while to others it tastes like soap. Some people simply cannot eat bitter karelah. For others it is a delicious dish. Some people have a natural aversion for intensely sweet things such as honey, while others relish in it. Some people incline to chicken while others again abhor chicken flesh. The list of different and divergent inclinations is formidable. But the fact remains that every item of maal has its pull of inclination which it exercises on different people. It is plain common sense to understand that every member of the human race does not have the same inclination as the rest of mankind. This attribute too applies in different ways to different people. It suffices for some people to incline to a tangible object for it to be termed maal provided there is no restriction imposed by the Shariah on the utilization of that particular object. The Hanafi definition of maal does not require the inclination of every member of the human race for something to be termed maal. This definition for its validity, also does not require everyone of inclination to display the same category of inclination. Some incline to some things by natural disposition while others incline intellectually. Others again incline in consideration of the teachings and spirit of the Shariah. Regardless of the category of inclination, the presence of this attribute in every Muslim relative to the millions of good things Allah Ta’ala has created for man’s use and nourishment, adequately confirms the veracity of the Hanafi definition of maal, irrespective of the chagrin of the copyright Molwis. The definition of maal never purported that for a tangible object to be maal according to the Shariah, the inclination of every one of the one and half billion Muslims inhabiting this earthly globe be directed to that particular item. Such an expectation is ridiculous. 114 The Third Stupidity The copyright Molwi alleges that many things which are not maal in terms of the Shariah, come within the scope of the Hanafi definition of maal, e.g. liquor. Inspite of the tabiyat of man inclining to it and inspite of the ability to preserve and store it, it is not considered maal. This is another fallacious attempt to negate the Hanafi definition. In his imagination, the copyright Molwi has assumed that the two requisites of maal are found in liquor. In reality both ingredients which are stated in the Hanafi definition are non-existent in liquor. It has already been explained that there are different categories of inclination such as Aqli, Tab’i and Shar’i. None of these types of inclination exists in the true Mu’mineen in relation to liquor. Intellectually and by natural disposition, every Mu’min abhors liquor. A deranged disposition, corrupted and diseased by transgression and immorality is of no significance. Such diseased inclination has no validity and no bearing in the determination of inclination for the application of the definition of maal. The very stench of liquor sickens a Mu’min, physically and spiritually. It is truly surprising for the Molwi Saheb to have attempted to neutralise the Hanafi definition by insinuating that the Mu’mineen have a natural or an intellectual inclination for the consumption of liquor. It is re-iterated that deranged attitudes and dispositions are of no significance in the definition of maal. As for the condition of id-dikhaar (preservation), the Hanafi definition does not envisage the inclusion of just every tangible object which is preservable, within its scope. The copyright Molwi has conveniently overlooked that along with the two conditions he has mentioned, there is a third stipulation called intifaa’ (derivation of benefit). This condition too is not unrestricted. The intifaa’ has to be lawful according to the Shariah. The term is not applied in its literal sense. The Fuqaha state this condition with clarity, viz., Al-Intifaa’ Shar-un or the derivation of benefit which is lawful in the Shariah. This excludes such items which is maal for the Nasaara for example. Hence, pork and liquor are excluded from the Shar’i definition of maal notwithstanding the existence of iddikhaar and the baselessly assumed condition of mailaan (inclination). 115 Even if we assume that there are many Muslims who naturally incline to the consumption of liquor, the Al-Intifaa’ Shar-un requisite is lacking. The Hanafi definition, therefore remains valid and has not been dented by the stupidities advanced by the copyright Molwi. His arrogant and audacious claim: “To me the definition (of the Hanafi Math-hab) is incorrect”, is dismissed as arrant nonsense uttered by a non-entity who has failed to understand the lofty rank of the Hanafi Fuqaha. Intifaa’ In his summing up of the different wordings presented by various Hanafi Fuqaha for the very same concept of maal acknowledged by the consensus of the Math-hab, the copyright Molwi avers: “In Badaaius Sanaai, Allaamah Kaasaani has narrated a number of examples from which it is clear that if intifaa’ (benefit) in something is permissible according to the Shariah, then in view of it being maal, its sale is permissible.” He has submitted this hypothesis – groundless assumption – as proof for the contention that a trade name is maal because there is benefit in it, hence its sale is permissible. But he has not been able to sustain the contention of a trade name being maal according to the Hanafi Mathhab. The definition of Allaamah Kaasaani relates to only material/physical objects in which exists the condition of id-dikhaar, mailaan and intifaa-shar-un. In substantiation of his claim, he presents Allaamah Kaasaani’s fatwa on the permissibility of selling dogs because of the derivation of lawful benefit from them, e.g. guarding and hunting. But this example is ridiculous because a dog is a tangible object. It is not a figment in anyone’s imagination nor is it an abstract right such as the trade name right. The Shariah has made intifaa’ from dogs lawful although the Shaafi Math-hab does not accept this permissibility. While the copyright Molwi is quick to extract support for his cause from the Shaafi definition of maal, he conveniently bypasses the Shaafi negation of maal in relation to a dog. For his patchwork ‘daleel’ the Molwi Saheb is constrained to 116 weave his fabric from bits and pieces of cloth which he cadges from the various Math-habs. All Hanafi Fuqaha accept the ruling in Badaaius Sanaai. It is not exclusive with Allaamah Kaasaani. However, it is utterly fallacious to extend the fatwa pertaining to dogs to the intangible entity called trade mark. While the former is maal, the latter is not. Intifaa’ alone does not make something maal even if the intifaa’ is lawful. There are numerous benefits (manaafi) for children in their parents and vice versa; the same applies to husband and wife; there is great intifaa’ for a farmer in the water in a well or dam on his farm; there is intifaa’ for a property owner in the vacant space on top of his building; there is intifaa’ in the shade which his wall casts on a hot day, and similarly there is intifaa’ in other things, tangible and intangible. However, the quality of intifaa’ does not make these things maal. Trade is not permissible with these things notwithstanding their intifaa’. Not one of the many examples in Badaaius Sanaai (some of which have been cited by the copyright Molwi) concerns a sale of rights or benefits or intangible (non-physical) things. The examples are of dogs, elephants, wild animals, insects, etc. A trade name is something permissible. But it is not maal. A popular trade mark has its benefits for the trader. The benefits do not assign it to the category of maal. Not a single Hanafi Faqeeh has ever issued a ruling to classify abstract entities – rights and benefits – as maal notwithstanding their benefits and inspite of the permissibility of monetary compensation being permissible for certain Shar’i rights such as Qisaas, Diyat, Khula’, etc. The benefit and even the permissibility of monetary compensation in exchange for such abstract rights did not constrain the Fuqaha to bring such entitities within the purview of maal. There is therefore absolutely no validity in the claim of the copyright Molwi. It is haraam to sell a trade name. Franchise selling comes within the scope of this prohibition. And Allah knows best. 117 MUFTI TAQI UTHMAANI’S VIEW Among the senior Ulama of this age is Hadhrat Mufti Taqi Uthmaani Saheb, the son of the illustrious Hadhrat Mufti Muhammad Shafi (rahmatullah alayh), who was also a very senior Khalifah of Hakimul Ummat Hadhrat Maulana Ashraf Ali Thaanvi (rahmatullah alayh). Hadhrat Mufti Taqi Saheb has propounded a view in favour of the legalizers of haraam copyright. In so doing he has come out in open refutation of the Fataawa of his illustrious father, Mufti Muhammad Shafi, and of all he senior Ulama of the recent generation preceding him. In his summary of the copyright subject, Mufti Taqi Saheb, throwing in his lot with the liberals, comments: “I have analysed the arguments of both sides in my Arabic treatise ‘Bayul-Huqooq’ and have preferred the second view over the first, meaning thereby that a book can be registered under the Copyright Act and the right of its publication can also be transferred to some other person for a monetary consideration.” The arguments which Mufti Taqi Saheb presents are similar to those of the Fiqh Academy Molwis. In this treatise, we have already answered these arguments which are also flimsy products of personal opinion lacking in entirety in any Qur’aanic or Hadith Nusoos. In fact, their arguments are all tailored and tuned by breaking down the Nusoos and the immutable principles of the Fuqaha-e-Mutaqaddimeen who have structured these principles on the sacred Nusoos. We have not seen Hadhrat Mufti Taqi’s Bay-ul-Huqooq. When a copy becomes available we shall, Insha’Allah, subject it to scrutiny. If any ‘new’ arguments other than what the Fiqh Academy Molwis have presented, surface in his book, we shall respond thereto, Insha’Allah. Adding to his view, Hadhrat Mufti Taqi Saheb comments: “Coming to the question of restrictions imposed by the law, I would like to add that if the law of copyright in a country prevents its citizens from publishing a book without the permission of the copyright holder, all the citizens must abide by this legal restriction. The reasons are manifold: Firstly, it violates the right of the copyright-holder which is affirmed by 118 the Shariah principles also according to the preferable view, as mentioned earlier.” RESPONSE The Shariah’s law pertaining to copyright and observance of the law of a country are two separate issues. Our discussion of copyright is in refutation of the opinion of the liberal Molwis. It has no bearing on observance or non-observance of the laws of the secular kaafir or faasiq Muslim state. In today’s age there are only two categories of government: Kaafir state and Faasiq state. There is no third classification. Obeying the laws of such anti-Divine states of kufr and fisq is governed by different laws and principles of the Shariah, which are designed to save Muslims from the tyranny and oppression of the Dajjaals which rule these countries. Consider for example the oppressive haraam taxes which secular governments levy nowadays. They confiscate 75% or more of the earnings of people in the form of a host of direct taxes, a myriad of indirect hidden taxes and an avalanche of extortions described as levies of a variety of kinds. Are these taxes permissible in Islam? Obviously, no Mufti who has an understanding of his profession can aver permissibility. The issue of taxation being haraam is one matter, while paying these taxes is entirely a different issue. When the Ulama advise Muslims to pay their taxes to avoid the imposition of greater tyranny and oppression of the secular authorities, such advice never means that these taxes are permissible in the Shariah. The advice and even the fatwa to pay the Islamically unlawful taxes are issued in the interests and safety of Muslims—to prevent them from going to jail, being humiliated and subjected to confiscation of their halaal assets. This fatwa to pay the taxes is thus dictated by circumstances, and it does not purport that taxes are halaal. Furthermore, if a Muslim refuses to abide by this advice and he escapes payment of taxes, he will not be committing a sin nor be held liable in Qiyaamah. The arguments which we have presented in refutation of the baseless view of the liberal Molwis on copyright, present the law of the Shariah 119 on this question. It has no relationship with observance or nonobservance of the laws in secular states pertaining to the “restrictions imposed by the law”. If Hadhrat Mufti Taqi Saheb had desired to present his fatwa on this specific aspect, it was a simple issue which does not require first an exercise to prove the legality in the Shariah of copyright. Even on the basis of the impermissibility of copyright, he can still issue his fatwa of observance of the law. As mentioned earlier, that is an entirely separate question totally unrelated to permissibility or impermissibility of the deed. In propounding his fatwa to observe the restrictions of the law on copyright, the first of the ‘manifold’ reasons tendered by Mufti Taqi Saheb is: “It violates the right of the copyright-holder which is affirmed by the Shariah principles also according to the preferable view.” We have already shown in this treatise that publishing a book without the consent of the author in no way whatsoever violates any of his rights. We have shown that copyright is in fact not a right. It is a baatil concept which is tantamount to the usurpation of the rights of others and an idea crafted to fulfil the pecuniary cravings of heartless men who find the capitalist system to be conducive for expression and realisation of such despicable cravings. The claim that this ‘right is affirmed by the Shariah principles’ has been averred without Shar’i substantiation. It is purely the product of opinion influenced by liberalism to satisfy western concepts. Far from this baatil ‘right’ being affirmed by Shariah principles, the latter are distorted and misinterpreted to produce a basis for legalizing this capitalist concept. Not a single principle of the Shariah upholds this concept as we have shown in this treatise. The statement about “the preferred view” is highly misleading. This “preferred view” is actually Hadhrat Mufti Taqi’s personal opinion and preference. He has ‘analysed’ the view of the senior Ulama headed by Hadhrat Maulana Ashraf Ali Thanvi on the one side, and the view of the juniors of this age headed by Qadhi Mujaahidul Islam. Setting aside the fatwa of categoric impermissibility of our and his illustrious Akaabireen, at Mufti Taqi Saheb preferred the view of the contemporary Molwis. 120 Presenting his second reason for his preference, Hadhrat Mufti Taqi Saheb comments: “I have mentioned that the views of the contemporary scholars are different on the concept of ‘intellectual property’ and none of them is in clear contravention of the injunctions of Islam as laid down in the Holy Qur’aan and the Sunnah. In such situations, an Islamic state can prefer one view over the other, and if it does so by a specific legislation, its decision is binding even on those scholars who have an opposite view.” We hold a diametric opposite view which we claim is based on the principles of the Qur’aan and Sunnah while the opposite view is utterly baseless having absolutely no basis on any principle of the Qur’aan and the Sunnah. Hadhrat Mufti Saheb has opened up the superfluous and futile dimension of an Islamic state. What relationship does this western concept of copyright have with an Islamic state? In this age an ‘Islamic state’ is utopia. There exists not a single Islamic state anywhere in the world. All Muslim countries are in the grip of either murtadd or fussaaq rulers. These states have a host of kufr laws which they impose on Muslims. In relation to the present scenario, it is most despicable for Hadhrat Mufti Saheb to bring up the topic of an Islamic state and issue a fatwa that it is binding on Muslims to follow all the haraam scrap laws of these dajjaals. Muslim countries, almost without exception, have cancelled the Qur’aanic laws of Talaaq, to mention just one. Three Talaaqs issues, whether in one or three different sessions are not valid if executed without secular court intervention in some countries. Such kufr cannot be binding on Muslims in general, leave alone the Ulama-e-Haqq. Really, this is a truly superfluous argument. A separate book has to be written to refute what Hadhrat Mufti Taqi Saheb has averred in regard to the binding nature of haraam and kufr laws imposed by Muslim states, erroneously dubbed ‘Islamic’ states. Imaam Ahmad Bin Hambal (rahmatullah alayh) preferred to be flogged mercilessly by the executioner of the Islamic state, rather than submit to the baatil legislation of the state. If the Islamic state enacts legislation to the effect that meat which is Matrookut Tasmiah Aamidan, i.e. the 121 Tasmiah has been intentionally deleted when slaughtering animals, is halaal, it will NEVER be binding on even the Hanafi masses to accept such a law even though this law has validity according to the Shaafi Math-hab. The Ulama-e-Haqq will continue to proclaim the Haqq and say that such meat is haraam. These are merely two examples which we mention in passing. The third reason advanced by Mufti Taqi Saheb for submission to the impositions of a secular state is as follows: “Thirdly, even if the government is not a pure Islamic government, every citizen enters into an express or tacit agreement with it to the effect that he will abide by its laws insofar as they do not compel him to anything which is not permissible in Shariah. Therefore if the law requires a citizen to refrain from an act which was otherwise permissible (no mandatory) in Shariah he must refrain from it.” In the first place, there is no such express or tacit agreement with the secular state. The only tacit agreement is that Muslims living in dajjaal states will submit to the laws of the country. The only option available to concerned Muslims is to circumvent discriminatory and oppressive laws by working around these very laws, and exploring loopholes in these laws and in the constitution of the country. In this way, the Muslim is forced to conduct his life in both kaafir and faasiq states. This argument too is unrelated to the actual mas’alah of the permissibility or impermissibility of copyright. In passing we have to say that this argument has its flaws, and can be refuted thoroughly. Hadhrat Mufti Saheb conditions obedience to the secular government with “insofar as they do not compel him to anything which is not permissible in Sharih.” But, this condition is practically neither observed by Muslims nor accepted by any secular government. There are many acts which are not permissible in the Shariah, but which are imposed on the Muslim citizens of the faasiq/kaafir state. Pictures of people are haraam. However, all Muslims are compelled to observe this haraam act, and all Muftis condone and accept the permissibility of Muslim submission to this impermissibility. 122 Post-mortems are haraam. But this haraam act is imposed on all Muslims who submit, and all Muftis decree that such submission to the kaafir/faasiq state is permissible. The Hijaab of Muslim ladies is totally violated when they have to deal with males in governmental offices. All Muftis rule that such violation of Purdah which is haraam, is permissible in the secular state. Similarly, there are other incidents of impermissibilities which are compulsorily imposed on Muslim citizens of the secular states. Thus, the averment of Mufti Taqi Saheb is bereft of substance. With regard to permissibilities – acts which are not mandatory in the Shariah – it goes without saying that Muslims should not contravene the laws of the land unnecessarily and invite criminal charges and problems for themselves. But this issue is not contested and does not form part of the discussion pertaining to permissibility or impermissibility of copyright. THEIR BAATIL FATWAS “O People of Imaan! Verily, numerous Ulama and Mashaaikh devour the wealth of people unlawfully, and (thereby) prevent (people) from the Path of Allah”. (Surah Taubah, aayat 34) 123 FATAAWA OF THE AKAABIREEN The Fataawa of some Akaabireen (Senior Ulama) are presented to confirm the invalidity and impermissibility of copyright and whatever is associated with it. (1) Hadhrat Mufti Mahmood Hasan Gangohi (rahmatullah alayh) states: “Haqq-e-Tasneef (copyright) is not maal (tradable commodity) which could be made a gift or sold, hence selling and gifting it are baatil.” (Fataawa Mahmudiyyah, Vol. 15, page 370) (2) Hadhrat Maulana Rashid Ahmad Gangohi (rahmatullah alayh) states: “Copyright is not maal which could be sold or given as a gift, hence its sale and hibah (making a gift of it) are baatil.” (Fataawa Rashidiyyah, page 427) (3) Hadhrat Mufti Rashid Ahmad, author of Ahsanul Fataawa, states: “Copyright which is in vogue is not permissible because there is no specific right of the author. Only the manuscript is his property which he may sell.” (Ahsanul Fataawa, Vol.6, page 528) (4) Hadhrat Maulana Muhammad Yusuf Ludhyaanwi (rahmatullah alayh) states: “According to our Akaabir it is not permissible to have a copyright registered.” (Aap Ke Masaail. Vol.6, page 199) 124 THE SHAR’I STATUS OF COPYRIGHTS AND PATENCY RIGHTS By (Hadhrat Mufti Muhammad Shafi) – Rahmatullah alayh– It is not permissible for an author or an inventor to register any book or invention respectively thereby preventing others from publishing the book and manufacturing the invented item. A person may be prevented from a permissible activity because of two reasons: (1) The activity is carried out in the property of another person without his consent. (2) The activity is harmful for others. In the question under discussion both these factors are not to be found. With regard to the first factor, the publisher or the manufacturer does not operate in the property of the author or the inventor. On the contrary, he arranges all the ways and means for the publication of the book or for the manufacture of the invented item. The book which he prints has also been acquired lawfully Haqq-e-Tasneef (Copyright) is neither maal (tradable commodity) nor does it have the capability of mielkiyyat (becoming someone’s property). However, in the present age, the government has awarded it the status of a right just as it has decreed many other baseless things to be rights. The second factor (mentioned above) is also non-existent because the publisher of the book does not prevent the author or anyone else from printing and distributing the book. The issue of dharar (harm) is not applicable. On the contrary, the publication by others closes the avenue for exorbitant prices charged by the author and the inventor. When others also publish the book or manufacture the product, the masses are not constrained to buy at the exorbitant prices fixed by the whim and fancy of the author and inventor. Thus, firstly, this (printing of the book by others) is not dharar. It is admun nafa’ (non-acquisition of profit). In fact it is taqleeun nafa’ or 125 decrease in profit. The difference between dharar and admun nafa’ is quite obvious. In Mabsoot of Shamsul Aimmah it is mentioned with clarity that it is not permissible to become a cause for dharar (harm) for others. However, if one’s (lawful) activity leads to a decrease in the profit of others, then one’s activity remains lawful. If a particular shopkeeper’s profit decreases or he makes no profit as a result of several shops selling the same wares opening up in the vicinity of his shop, it will not be said that the other shops have caused him dharar. There is therefore, no Shar’i nor rational reason for debarring others The only reason why an author is averse to others printing the book is to enable him to sell at a high price which he cannot do in the face of competition by others, or his desire is that he alone should derive the benefit of the trade while others are deprived of this lawful gain. This is in fact harm caused to the masses. Hence, instead of debarring others, the author/inventor should be debarred because the Shariah does not permit benefit of an individual at the expense of the masses. There are many such examples in the authentic Ahaadith. In Bukhaari and Muslim is the narration of Hadhrat Abdullah Ibn Abbaas (radhiyallahu anhu): “Rasulullah (sallallahu alayhi wasallam) forbade that the caravans (of grain) be intercepted, and that the urbanite sells for the village-dweller.” Here Rasulullah (sallallahu alayhi wasallam) prohibited people of the town (traders and agents) from going to the outskirts to buy grain, etc. which farmers bring to the city. They should not be intercepted on the way and all their produce bought. They should be allowed to enter the city and sell directly to the public. Simarly, agents from the city should not sell the produce of the farmers. To avoid monopoly which will enable the agent or the handful of agents to fix high prices, Rasulullah (sallallahu alayhi wasallam) instituted this measure. The cheap prices at which the farmers will themselves sell their produce directly to the public will be eliminated by the monopoly of the agents. This will be harmful for the masses. Similarly, the Hadith prohibits hoarding of grain and essential foodstuff. In this practice the grain is hoarded in anticipation of higher 126 prices. When the prices rise, the grain is then sold. This prohibition is also to save the masses from difficulty and hardship. A salient fact in these examples is that these acts are tasarruf (operation) in one’s own mielk (property). Inspite of this, the Shariah has not given people the right to act in a way which will cause distress to the masses. Now what should be the ruling pertaining to something which is not even related to one’s mielkiyyat (ownership), and which constitutes a cause for distress to the public at large? A person intends to operate in his own mielk, wanting to print the book or manufacture a product, then the author or inventor becomes an obstacle preventing him from this tasarruf in his own mielk. How can this be tolerable? The noble Fuqaha have formulated a special principle on the basis of the Qur’aan and Hadith for eliminating dharar, and they have narrated many examples of this in Ashbaah wa Nazaair under the heading, Adhararu Yuthaalu. In brief, sometimes the Shariah tolerates shakhsi dharar for the sake of eliminating dharar aammah. (Shakhasi dharar is harm for an individual. Dharar Aammah is harm suffered by the public or the masses.). On the basis of this principle the ruler has the right to fix prices of necessities when there develops a need for this. It is inconceivable that the Shariah would accept a dharar aammah whose elimination does not harm anyone. In fact, this cause of dharar aammah is not even admun nafa’ (not making any profit). It is only an imaginary decrease in profit (which has yet to be acquired). (Hadhrat Mufti Shafi – rahmatullah alayh – here is saying that the Shariah does not tolerate the public-harm which is caused by the author’s monopoly. In safeguarding the interests of the public at large in relation to printing and publication, harm and loss are not caused to the author. If there is any such harm, it exists in only the imagination of the author – Mujlisul Ulama) Let us ponder on the scenario universally prevalent in the present age. Neither the poor nor the wealthy, nor the high and the low, feel safe in the state of the all-pervading unrest of the world. Innumerable lawful and unlawful ways for the acquisition of wealth have been introduced and are being fabricated. One of the prime causes for the universal state of strife 127 and unrest is that the capitalist governments, their collaborators and helpers have either captured for themselves or transformed into market commodities the ways of earning which the Shariah of Islam has ordained as public property in which all people have a common right. However, those who pay taxes become the owners of such means and ways. (Or governments have by legislation claimed all public land and the ways and means of earning which the Shariah has set aside for free public use and to be acquired as private property by any individual who desires to own such land or public assets.—Mujlisul Ulama) This was the starting point of the conflict between the capitalists and the workers—a conflict which spawned the unnatural insane system of socialism. Different types of calamities followed in the wake of this system. With certitude it can be said that as long as the straight, clear and just social system of Islam is not accepted the present state of unrest will not end, and public safety will not be achieved. In terms of this (Islamic) system, whatever Allah Ta’ala has made waqf for the masses (i.e. ordained as public property in which everyone has a share) should be released from the grip and domination of individuals (the capitalists who have grabbed all such means). Similarly, whatever is lawfully the property of individuals, others should not be allowed to even cast their gaze on it. Examples of public property made waqf for the entire population are the oceans and whatever they yield, the mountains and whatever they yield, the forests, natural fountains, springs, dams, etc., and their yield. All these should be freed and restored for public use. Similary, the unjust ‘right’ of authorship (copyright) should be eliminated and every entrepreneur should be given the opportunity to derive profit from his enterprise and labour. It is only this (Islamic) system of justice and moderation which can guarantee public safety and peace. The summary of this discussion is: In reality copyright and patency right are not things which can become the property of individuals. To prevent a person from applying his effort and capital in the process of printing a book and manufacturing a product which he has seen, is in fact to prevent him from something which is 128 lawful for him and to which he is entitled. It is obvious that such prevention is zulm (oppression) which is not permissible. Some people present the argument that a benefit of registering copyright is to prevent publishers from printing mutilated and erroneous versions of the books. They do so merely for the sake of gaining more profit. Thus, the true aim of the author is not realised. The response: In such cases the author has the Shar’i right to institute legal proceedings against the publisher because he has attributed to the author a version which is false. In this manner the publisher could be restrained or compelled to rectify the wrong. But there is no Shar’i permission for imposing a general ban on publications. When it is now understood that the author and the inventor have no right whatsoever of exclusively printing and manufacturing their book and product respectively, then it will be understood that according to the Shariah it is not permissible to trade in these ‘rights’. Maal (tangible asset) is a condition for the validity of buying and selling while haqq-emujarrad (an abstract right) is not maal even if it is a means for the acquisition of wealth. And Allah Subhaanahu Wa Ta’ala knows best. (Jawaahirul Fiqh, Vol. 2, page 329) The penultimate ruling stated by Hadhrat Mufti Shafi (rahmatullah alayh) applies when the right is a true haqq recognized by the Shariah. Notwithstanding the validity of a true right, the Shariah prohibits its buying and selling because it is not a tradable asset. In so far as the imaginary copyright, patency right and similar other kuffaar-concocted ‘rights’ are concerned, the prohibition will have greater emphasis. 129 REGISTRATION OF COPYRIGHT By Hakimul Ummat Hadhrat Maulana Ashraf Ali Thaanvi (Rahmatullah alayh) Among the evil practices prevalent in this age is the practice of some authors (in fact nowadays of most authors – Mujlisul Ulama) to sell or buy and register copyright. In the Shariah, a right is not property (or an asset which could be owned). This is apparent for the experts of Hadith and Fiqh. Therefore, acting with it as if it is one’s property and to prevent others from deriving benefit from it are all haraam and sinful acts. Allah Ta’ala says: “Do not devour the wealth of one another in baatil (unlawful) ways.” (Islaahur Rusoom, page 109) Hakimul Ummat, Hadhrat Thaanvi (rahmatullah alayh) declares with emphasis and with the greatest conviction that copyright, its registration, buying and selling are all baatil, haraam and ma’siyat (sinful). It is, therefore, unreasonable and misleading for the liberal Molwis to cite Hadhrat Thaanvi’s fatwa on monetary compensation for a trade-name as a basis for their quest for legality of copyright. The fatwa pertaining to a trade-name should be given a suitable interpretation to accord it reconciliation with Hadhrat Thaanvi’s view on the issue of the sale of rights which he very explicitly declares haraam with emphasis. He leaves not a vestige of ambiguity regarding the Shariah’s prohibition of buying and selling copyright. If the votaries of copyright cannot produce a reconciliation between the apparently conflicting tradename fatwa, let them simply set it aside and accept Hadhrat Hakimul Ummat’s categoric fatwa on the refutation of copyright. The fataawa (Shari rulings) of these Paragons of Ilm and Taqwa – of these illustrious Akaabir Ulama, Hadhrat Maulana Ashraf Ali Thaanvi, Hadhrat Mufti Muhammad Shafi, Hadhrat Maulana Rashid Ahmad Gangohi and others, who were also among the Aarifeen, sink into the hearts of the Mu’mineen just as water sinks into a sponge. Their clear and simple arguments based on the principles and spirit of the Shariah are readily comprehensible to all and sundry and are unlike the laborious, 130 labyrinthal, confusing and conspicuously deviant argumentation with its plethora of far-fetched and baseless interpretations of technical terms which the Fuqaha had coined for the practical guidance of the Ummah, not for giving impetus to and in substantiation of kuffaar systems and concepts which are heavily tainted with the riba hues of western capitalism. It will be easily discerned and understood that the while the fataawa of the Akaabir Ulama have in view the moral and spiritual interests of the Ummah and the goals of the Aakhirah, the shallow rulings of the liberal Molwis sitting in the luxury of westernized ‘academies’ and flitting in jets to take up seats in western-style conference rooms as if they are the delegates of their countries at some UN session, are designed to pander and pamper the inordinate pecuniary greed of the nafs and to strike an acceptable chord of cordiality and reconcilability with the concepts of kuffaar capitalism which dominate all systems of life in Muslim societies of the age. Instead of fulfilling their roles as guides and teachers of the Ummah, the liberal Molwis with their strong inclination, in fact embrace of western ideals and systems, have betrayed Islam—they have betrayed Allah, the Rasool and the Ummah. Instead of acting as the Guardians of the Shariah, they have joined by their attitude and baseless rulings the league of westernized Muslims whose goal on earth it has become to subvert the Shariah, refute its immutability, re-interpret its sacred principles which were perfected in the very age of the Qur’aanic revelation and codified into a systematic Order by the Aimmah-eMujtahideen of the first era of Islam. Their attitude of liberalism which has been spawned by their love for western modernism with its worldly comforts and pleasures, is increasingly alienating them from the Shariah and the Ummah. They are inexorably engaging in wild interpretations of technical terms to make way for the accommodation of Islam within the folds of western modernism. Every baatil western practice of their economic system, glaringly tainted with riba and haraam, is accorded Shar’i sanctity by the liberal Molwis. The twin diseases of Hubb-e-Jah (love for name and fame) and Hubb-e-Maal (love for material wealth) are the motivating 131 force for all the corruption which the acquiescing Molwis have created in the ranks of the Ummah with their liberalism. Although most of these Molwis are driven to pursue their mundane and nafsaani goals by base and ulterior motives, there is a tiny minority of sincere Ulama in their ranks, who have committed grave Ilmi errors in the formulation of their fataawa on issues such as copyright. We do not associate these sincere Ulama with the liberals and our criticism is not directed towards them. Even great Ulama who are men of profound Ilm and Taqwa also err. The retractions issued by sincere Ulama testify to the truth we are saying here. The gravest threat for the Shariah and the Ummah in this age is not the deviant modernists –the mulhideen. The danger is the liberal molwi whose goal in life is this dunya, not the Aakhirah. About them, Rasulullah (sallallahu alayhi wasallam) said: “Verily, I fear for my Ummah the Aimmah-e-Mudhilleen.” That is, those ‘scholars’, ‘sheikhs’, imams and ‘molwis’ who will lead the Ummah astray with their concocted views of the Shariah. Today, there is a mass production of such mudhilleen. A salient sign by which they may be detected is their leaning of admut taqleed. Their endeavour is to legalize baatil with a patchwork of dalaail woven from principles, teachings, exceptions and obscurities drawn from all Math-habs. The conspiracy is to structure a new ‘shariah’ which is so spacious that every norm, concept and cult of kuffaar, especially western society, can be accommodated. However, they are doomed to failure because Allah Ta’ala, Himself has undertaken the responsibility of safeguarding His Immutable Shariah: “Verily, We have revealed the Thikr and verily We are its Protectors.” (Qur’aan) 132 SOME OTHER JAAHILIYYA RIGHTS Trade Licence Among the baatil ‘rights’ which the liberal Molwis have legalized and claimed to be valid commodities of sale is a trading licence granted by the kuffaar or fussaaq authorities. Their argument is that a trading licence is a right acquired from the governmental/municipal authorities. This ‘right’ is registered by the government, and the licence allows a person to trade. Frequently the licensee sells his licence to another person. The liberal Molwis argue that since there is benefit in this licence, hence its selling and buying are permissible. The same stupid argument they have put up for the sale of a trade name is presented for the erroneous opinion of the permissibility of selling a trade licence. Another ‘daleel’ for this ‘permissibility’ is ‘urf’ or the general practice of the people. The question of Urf will, Insha’Allah be dealt with in a separate treatise. The liberal Molwis have created considerable confusion on this issue. In fact, they have effectively made Urf the abrogator of any law of the Shariah. The need is for a detailed refutation which will be issued if Allah Ta’ala grants us the taufeeq and the means. The same explanation pertaining to intifaa’ on the question of trade name applies here. Intifaa’ (gaining benefit) does not transform an abstract thing into maal (tangible, tradable commodity). There is a fundamental difference between a trade name and a licence to trade, which makes the latter reprehensible and haraam. A trade name and a trade mark are Mubaahul Asl, i.e. permissible. Everyone has the right to adopt any permissible name for his business. He does not have to pay anything for availing himself of this inherent right, and no one and no authority have the right to debar him from this right. While it is his right to adopt a trade name/mark, he has no right of selling it. This has already been explained. In contrast, a licence to ‘allow’ people to trade, is a device of zulm (oppression). It is every person’s inherent right to set up shop and trade in all lawful products and in any place of his desire provided, of course, that no dharar (harm) is caused to anyone, i.e. real harm e.g. trading on a plot of ground without the consent of its owner or setting up a stall in a public thoroughfare, thereby hampering the movement of people. 133 The Shariah has given every person the right to trade. He does not require permission from the government or municipality to trade. Prohibiting a person from trading because he has no ‘licence’ is zulm and haraam. A licence is a worthless scrap of paper which is an instrument of oppression and injustice. To sell this scrap of zulm paper is haraam. It is firstly, not even a right. Secondly, it is an instrument of zulm. Thirdly, it is not maal. Its sale is more repugnant than selling a trade name. Fourthly, the intifaa’ or gaining monetary benefit by selling the licence, is also haraam. Even this baseless ‘right’ of zulm has been legalized by the liberal Molwis. Import/Export Permits The liberal Mowis have also legalized this instrument of zulm. It is the Mubaahul Asl right of every person to import and export goods in the pursuance of his rizq and wealth. A government has no authority to debar anyone from this lawful inalienable right granted to people by the Shariah. These permits are haraam instruments and scraps of paper which are not maal in Islam. As far as the contention of intifaa’ (deriving benefit) with these instruments of oppression is concerned, such ‘intifaa’ is haraam, i.e. the gain derived from selling the instrument of zulm. It is not permissible to earn money by perpetuating injustice and oppression. If one has no use for the permit, have it cancelled, or if another Muslim could be assisted without creating problems for oneself, aid him with the permit for the pleasure of Allah Ta’ala and for the wonderful manfa-at of Thawaab in the Aakhirah. Money may not be charged for this device of zulm. The aforementioned ruling of hurmat (prohibition/being haraam) applies to all similar imaginary rights, benefits and permits which are the products of the western system of economics. Goodwill Goodwill is termed Haqq-e-Ijaarah by the liberal Molwi who so ardently espouses the cause of copyright and all the other baatil ‘rights’ in vogue in this age. Haqq-e-Ijaarah means ‘the right of leasing’ which according to the liberal Molwi Saheb is the right which the occupying 134 tenant or the owner of the building has. A person who wishes to occupy the premises may pay the existing tenant a sum of money to vacate. Or the owner of the building may charge a sum of money, apart from the monthly rental, for granting occupancy. These forms of goodwill have also been legalized by the liberals on the basis of prevalent custom (urf) an isolated example in Shaami, and juggling with some principles of the Shaafi and Hambali Math-habs. We have already made reference earlier to this baseless and haraam riba charge. According to the Shariah, the existing tenant has absolutely no right to charge any money for vacating. He occupies another person’s property for which he pays rents. If he no longer has use for the premises, or his lease has expired and he has no intention of renewing it, he has to vacate. The ‘goodwill’ he charges to vacate comes fully within the purview of the definition of riba: “Riba is every excess which does not have an iwaz (material commodity) as its equivalent.” This is the Shar’i definition of riba which fully applies to the baatil socalled Haqq-e-Ijaarah. The liberal Molwi has painstakingly laboured and meandered through a mire of technicalities, sampling every Math-hab, to conjure up his ‘fatwa’ of permissibility for this haraam riba levy. Similarly, the ‘goodwill’ charged by the owner of the property, is also riba, plain and simple. The reward or lawful gain of the owner is the rent the tenant pays. It is haraam to encumber the tenant with the haraam riba charge baselessly designated Haqq-e-Ijaarah. 135 A GRAVE MISUNDERSTANDING With their meandering and laborious arguments centring on the definitions of the Fuqaha and by flitting selectively from one Math-hab to the other the liberal Molwis have distorted the true meanings of the principles which the illustrious Fuqaha had evolved on the basis of the Qur’aan and Hadith. Stemming from the confusion of their devious meanderings, is the grave misunderstanding that according to the Shaafi, Maaliki and Hambali Math-habs, the sale of copyrights, patency rights, trade names, import/export permits, trade licences and the like of zulm and jahiliyyah ‘rights’ and ‘benefits’ are permissible. This misunderstanding is structured on the premiss of the definition of maal in terms of the other three Math-habs. In this definition, nonphysical things can also come within the scope of tradable commodity, e.g. valid rights. However, it is necessary to understand that inspite of this definition of maal, the aforementioned list of imaginary and zulm rights and benefits is not maal even according to the other three Math-habs. The liberal Molwis should first prove that copyrights, patency rights, licences, permits and similar other haraam instruments of oppression are valid and lawful huqooq and, manaafi’ according to the other Math-habs. It is insufficient for their contention to merely present the definition of maal according to the three Math-habs and arbitrarily justify their hypothesis which is a pure groundless argument.