Paper Money: A Legal Judgment by Umar Ibrahim Vadillo
The first aspect of arriving at a judgment is to understand the subject matter, in this case what paper money is. After that we can look at the Qur’an and the fiqh.
Paper money has evolved in nature through history. What we know today as paper money is not what it used to be. This evolution has passed through basically three stages:
1] A promissory note backed by gold or silver.
2] A process of unilateral devaluation leading to a complete revocation of the contractual agreement.
3] A piece of paper not backed by any specie, whose legal value is determined by the compulsion of the State Law.
Let us examine these three stages one by one.
1. Firstly, paper money was issued by banks and it represented a certain amount of gold or silver, known as the ‘specie’. Even though it never was 100% backed by the specie, the issuing bank was obliged to pay the amount on demand. In this sense it represented a kind of debt.
When paper money was a debt, was it acceptable? What issues concerning Islamic Law are relevant?
At this stage a certain amount of gold was held by typically a banking institution and it issued a paper certificate giving the owner the right to withdraw the specie on demand. (We will ignore the fact that this was a banking institution and it would have been dealing with Riba. We will pretend that they did not deal with interest in order to concentrate on the issue of paper money itself.)
A) The first issue that arises is the one of amana (trust): Your gold is in trust with a treasurer. What does Islamic Law have to say on this issue? Allah ta’ala says in the Qur’an in Surat al ‘Imran (3, 74):
Among the People of the Book there are some who,
if you trust them with a pile of gold,
will return it to you.
But there are others among them who,
if you trust them with a single dinar,
will not return it to you,
unless you stay standing over them.
That is because they say,
“We are under no obligation
where the gentiles are concerned.”
They tell a lie against Allah and they know it.
The hukum (legal judgment or command) of this ayat, according to Qadi Abu Bakr ibn al-Arabi in his ‘Ahkamul Qur’an’, is as follows:
“It is forbidden for Muslims to have amana with the kuffar outside Dar al-Islam,”
that is, “without standing over them” under the power of a Muslim authority. And the explanation for this is found in the ayat itself: “That is because they say ‘we are under no obligation,’ that is to say, because they can/will repudiate the agreement. Since this has been proven to be historically the case, we may conclude that this is of vital importance.
What this means is that it is not acceptable for Muslims to have money deposited with kuffar anywhere since we do not have a Dar al-Islam in which to exercise ‘standing over them’. A lighter interpretation would suggest that it would be acceptable to have amana with a kafir if the deposits are under the power of a Muslim authority. We accept the latter version. But what it categorically denies is the possibility of having amana with the kuffar when the wealth is stored under kafir authority.
We can conclude that when paper currencies—dollars, pounds, francs, etc.—were a debt, because the specie they represented was stored in trust away from our control, they could not be accepted by us, since we would fear that they would repudiate the agreement—as in fact later happened.
B) Now, assuming that the amana is under a Muslim authority, the second issue that arises is whether the promissory note can in itself be treated as money. In other words, whether the note can be used as a medium of exchange according to Islamic Law.
In this case the law of ‘transfer of debts’ becomes relevant. According to the School of the Amal of Madinah we find the following judgment and explanation in the Muwatta of Imam Malik:
Malik said, “One should not buy a debt owned by a man whether present or absent, without the confirmation of the one who owes the debt, nor should one buy a debt owed by a dead person even if one knows what the deceased man has left. That is because to buy it is an uncertain transaction and one does not know whether the transaction will be completed or not.”
He also said, “The explanation of what is disapproved of in buying a debt owed by someone absent or dead is that it is not known which unknown debtors may have claims on the dead person. If the dead person is liable for another debt, the price which the buyer gives on strength of the debt may become worthless.”
Malik said, “There is another fault in that as well. He is buying something which is not guaranteed for him, and so if the deal is not completed, what he has paid becomes worthless. This is an uncertain transaction and it is not good.”
The general idea is that in order to transfer a debt the original issuer of the debt (the person who has the obligation) must guarantee the value of the debt to the transferee (the person receiving the note). Thus, the first contract is liquidated and a new private contract is created. Debt is always kept as a private contract between the parties. It does not circulate without the creation of a new private guarantee (a new contract). The reason is that the person who has issued the debt may have more obligations than he can fulfil.
How would this injunction have applied when paper money was issued by the banks as a debt? Since every bank—and this is the whole idea of credit money—issued more obligations than the amount that they held in specie, it would not be acceptable to use any of its notes for trading. The reason is, that the person would be accepting a debt that is not guaranteed for him, especially when it is known that it cannot be guaranteed for him since the issuer (the bank) has more obligations than what it can fulfil. If every depositor in the bank were to demand the value of their notes, as is the case in a ‘run on the bank’, the bank would be unable to fulfill its obligations.
Conclusion. When money was a debt, in Islamic Law you would not have been allowed to use it. You would not be allowed to use a dollar, or a pound, or any note, whether it came from a kafir bank or a Muslim-owned bank, whether the specie was stored in a kafir country or in a Muslim country. Banking notes are not permitted to circulate.
But if the note is issued not by a bank, but instead by a person, and that person is present and can privately guarantee the physical possession of the goods, can in this case the note be transferred, sold or circulate in general? What aspects of the Law are relevant to the analysis of this case?
Again we have to go to the transfer of debts. What is relevant here is: what is the specie that is held as guarantee for the obligation? In other words, what is the specie of the note? If the obligation is in gold (money) then another set of restrictions come into place. If it is food then, again, another set of restrictions come into place. This is because gold, silver and food have a particular significance to trading—they are commonly used as a medium of exchange. The case is the following:
In the chapter called Money-Changing of the Muwatta of Imam Malik we read:
“Yahya related to me from Malik from Ibn Shihab from Malik ibn Aws ibn al‑Hadathan an-Nasri that he once asked to exchange 100 dinars. He said, ‘Talha ibn ‘Ubaydullah called me over and we made a mutual agreement that he would make the exchange with me. He took the gold and turned it about in his hand and then said, “I cannot do it until my treasurer brings the money to me from al-Ghaba.” ‘Umar ibn al-Khattab was listening and ‘Umar said, “By Allah! Do not leave him until you have taken it from him!” Then he said, “The Messenger of Allah, may Allah bless him and grant him peace, said, ‘Gold for silver is usury except hand to hand. Wheat for wheat is usury except hand to hand. Dates for dates is usury except hand to hand. Barley for barley is usury except hand to hand.’””
The first restriction is that you cannot use the gold or food in an exchange (sarf) unless the specie is physically present there. You cannot use the claim of gold or food stored with a treasurer. The items exchanged have to be present.
This matter rules out any possibility of using paper notes representing gold or silver to buy physical gold or silver. In addition, the exchange of paper notes with other paper notes is prohibited because it is Debt-for-Debt.
This prohibition of using promissory notes in an exchange is further reinforced by the following words:
Yahya related to me from Malik that he had heard that al-Qasim ibn Muhammad said, “‘Umar ibn al-Khattab said, ‘A dinar for a dinar, and a dirham for a dirham, and a sa’ for a sa’. Something to be collected later is not to be sold for something at hand.’”
Yahya related to me from Malik that Abu’z-Zinad heard Sa’id al Musayyab say, “There is usury only in gold or silver or what is weighed and measured of what is eaten and drunk.”
All this clearly indicates that not only gold and silver but also any food that could be used as payment is included in the prohibition, that is to say, the prohibition extends to any form of ‘common money’. Any note that represents any form of ‘common money’ cannot be used in an exchange. With that restriction in mind, it means that a banking note cannot really be used as money, but only as a private contract—which is the basis of our argument.
But what about a note held by a Muslim treasurer and guaranteed: can it be used in a transaction other than an exchange? Can it be used, for example, to buy other goods in the market?
“Yahya related to me from Malik that he had heard that receipts (sukukun) were given to people in the time of Marwan ibn al-Hakam for the produce of the market of al-Jar. People bought and sold the receipts among themselves before they took delivery of the goods. Zayd ibn Thabit and one of the Companions of the Messenger of Allah, may Allah bless him and grant him peace, went to Marwan ibn Hakam and said, “Marwan! Do you make usury halal?” He said, “I seek refuge with Allah! What is that?” He said, “These receipts which people buy and sell before they take delivery of the goods.” Marwan therefore sent guards to follow them and take them from people’s hands and return them to their owners.”
This means that you cannot use a promissory note and use it for trading as if it were money. The purpose of the promissory note is not to be money, but to be a private contract that must remain private and not public.
So, what is the use of the promissory note? What is the halal usage of it? It is halal to have a contract or a debt, and it is also halal to transfer that debt, provided that the person who issued it is accessible and can guarantee the payment of the debt by signing a new contract (promissory note) with the new recipient. If the guarantor is not a Muslim, then in addition to what we have said, he also has to have his amana within Muslim territory and under the overall supervision of an enforcing Muslim authority.
2. The second stage refers to the process of those years in which paper money was constantly devalued from its initial obligation (they paid less than they had promised), up until the debt was finally completely revoked (they withdrew their obligation). This final elimination of the obligation took place with the dollar in 1973, when Nixon unilaterally revoked the obligation of paying one ounce of gold for every 35 dollars.
What is the Islamic position regarding a promissory note when one of the parties unilaterally revokes its obligation, whether it is complete or partial? That is to say, what is the Islamic ruling when a debt is unilaterally revoked or devalued?
It is not acceptable. It is a violation of the contract. If this is done with premeditation and no responsibility is accepted, it amounts to pure theft. Theft is punishable in Islam.
To use the note to transfer it to other people, falls under all the restrictions that we have expressed before, with an added element. You are dealing with the promissory note of a known thief who does not admit his guilt or past obligations.
3. Finally we arrive at the money which we have today. There is no promise of payment in specie of any kind. It only has a legal value based on the obligation of the citizens of the country to accept the national currency as a means to redeem debts. This is the ‘Law of Legal Tender’. It gives the State the unique ability to confiscate anyone’s wealth within the nation and to pay for it in compensation with its own legal note.
Is this an acceptable means of payment in Islam?
Imam Malik said money is “any merchandise commonly accepted as a medium of exchange.” This implies two things:
A) Money has to be a merchandise. Therefore it could be paper. But paper only for the value of the paper itself, not for what is written on it. Money must be something tangible (‘ayn). Money cannot be a liability of any kind.
B) Money must be commonly accepted. Therefore it cannot be imposed. No-one can say it is obligatory on you. No-one can even make the Gold Dinar obligatory on the people. The Gold Dinar and the Silver Dirham become a currency out of free choice, not as the result of decree. Paper money is imposed on people. This obligation is not accepted in Islam for two further reasons:
—The fraudulent nature of the offer: they oblige you to accept something above its value (its real value is zero).
—The obligation of the offer: you are obliged to accept it whether you like it or not.
This unlawful behaviour is further reinforced by the application of State laws that restrict the use of any other merchandise as a means of payment, thus enforcing the State monopoly on the currency, particularly in regard to gold and silver. Gold and silver are either taxed, or their use is regulated and sometimes disallowed. In some extreme cases we have seen gold confiscated by law from the private citizens, as has been the case in the USA.
Paper money is not valid money in Islamic Law, whether in its present form or in any of the forms in which it has existed in the past. The Shari‘ah money is the Gold Dinar and the Silver Dirham. Any merchandise commonly accepted as a medium of exchange is also accepted as a valid money in Islam.
Umar Ibrahim Vadillo