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Abstract

This article analyzes and evaluates the positions of the contemporary Islamic jurisprudence regarding the question of insurance. The practice in this respect is to present the views of those who consider insurance as a legitimate activity, and the views of those who consider it as illegal one, and deal with the arguments and replies offered in support of such views. This article, however, has adopted a different approach, based on tracing or examining the fundamental. Conceptions from which the different positions on insurance flow, and evaluate them in the light of their understanding of the system of insurance. There are three major conceptions: The first concept is that the notion of insurance is simply a contract like any other contracts. Its legality will depend on its status in the classification of contracts as a contract of exchange and a grant. According to this concept, commercial insurance is considered to be an exchange contract and consequently is illegal because of the usury resulting from the imbalance between the installment of insurance and the amount of insurance. Cooperative insurance on the other hand, is deemed to be a grant, and is legal because there is no usury in such grant. This article has rejected the distinction between these two types of contracts on the ground that both of them are based on exchanging values and no grant is involved. It has concluded that the fundamental conception from which this distinction flows does not appreciate the reality of insurance and its system. The second concept is that insurance is a reality consisting of a system which includes a group of people exposed to the same danger, and that its objective is to cover the financial consequences of the risks, which the members of the group are faced with. The means for achieving this objective is a contract by which each member undertakes to pay his share to cover the risks that the members become liable, in exchange for financial coverage for himself in case the danger insured against occurred to him. This article has explained that this concept exists in both commercial insurance and cooperative insurance. The article then organized the logical results of this concept which are: First, installment of insurance should not be considered as the equivalence of the amount of insurance which will preclude usury. Second there must be a correlation between the installment of insurance and the amount necessary to cover the risk of the members of the system as a whole, and finally, there must be a linkage between the amount of insurance that the insured will receive and the occurrence of the danger insured against. Third, the problem of the legality of insurance must be solved throught an inquiry into the objective of the system of insurance. This article, then, turned to focusing upon the difference between commercial insurance and cooperative insurance. It has concluded that there is an independent insurer from the members of the system of commercial insurance in his effort for profit through the process of the system. In this respect, the article took the view that the profit in reality is a compensation for the insurer's guarantee of the rights of the insured from his own funds, and explained that giving such guarantee by the insurer in exchange for a profit is not contrary to the rules of Islamic law. The third concept links the legality of insurance to the practice of insurance companies. In this regard, this article notes three practices by insurance companies considered to lead to the illegality of insurance. The first relates to insurance on certain interests that are not recognized in Islamic jurisprudence. The second, relates to the unfairness in the determination of the amount, and the third, concerns the efforts of insurance companies not to pay the beneficiary. This article has shown that these practices do not affect the essential nature of the system of insurance, and has explained how modern legislations are trying to control such practices. This article in the end has summarized the benefits to be gained from it. These benefits are in these three matters. The first matter, is the emphasis on the real problem, and not on the ineffective factors incapable of influencing such problem. The second matter, is to draw attention to the achievements of Islamic jurisprudence in solving modern problems. The third matter, is to highlight the practical problems in insurance, and find the appropriate solutions to such problems through the function of the state in its control of the grocesses of insurance.

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