Islamic Law & Law of the Muslim World eJournal最新文献

{"title":"Accommodating Two Worlds","authors":"H. Harasani","doi":"10.2139/SSRN.2333356","DOIUrl":"https://doi.org/10.2139/SSRN.2333356","url":null,"abstract":"As the Islamic finance industry penetrates ever further into the global financial market, Islamic jurists and national regulators alike have a responsibility to encourage a positive reconciliation between Islamic and conventional structures that will allow Islamic finance schemes to develop uninhibited by legal obstacles. HAMID HARASANI evaluates the current situation.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124635209","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Appraisal of Al-Ijarah Al-Mawsufah Fi Al-Dhimmah (Forward Ijarah) from Fiqh Perspective","authors":"Monawer, A. Aziz","doi":"10.2139/ssrn.2430597","DOIUrl":"https://doi.org/10.2139/ssrn.2430597","url":null,"abstract":"Al-IjErah Al-MawIEfah FE Al-Dhimmah (forward ijErah) is a new form of transactions introduced to the Islamic banking industry which has original ground in the classical books of Islamic Jurisprudence. Most of the classical scholars discussed it with particularized ijErah in parallel without any separation of chapters or headings unlike al-BahEtE and al-MinhEjE. The scholars of four schools of Islamic Law are unanimously agreed on the legality of forward ijErah albeit some contemporary scholars mention the early dispute in this regard and attribute prohibition of forward ijErah to ×anafE School. This attribution is not accurate as it is proved by their many classical texts. Forward ijErah could be more flexible for both customers and banks to the extent that it does not become void if the stipulated usufruct damages while particularized ijErah becomes void because of damage of the object. Therefore, there is a need for further research in this regard in order to innovate some new tools that can improve the services of Islamic financial intuitions.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124396604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adding Social Responsibility and Accountability to the Mandate of Shari'ah Advisory Boards","authors":"Aly Khorshid","doi":"10.2139/SSRN.2189864","DOIUrl":"https://doi.org/10.2139/SSRN.2189864","url":null,"abstract":"Shari'ah advisors are specialized jurists, particularly in Shari'ah (Islamic Law), Fiqh Al-Muamalah (dealings), Islamic Finance and economics, they are entrusted with the duty of directing, reviewing and supervising the activities related to Islamic finance in order to ensure that they are in compliance with Shari'ah rules and principles, They are not accountable for their actions. The management of the financial institution is accountable for their organization performance and liability. The qualifications, responsibilities, ethos, and social responsibility of the Shari'ah board member are questionable, it should identified, regulated and accountable to the organization they represent and to the community affected by their decisions and above all it can effectively shape the Islamic finance system.This paper will disscuss in details the qualifications, ethos and the social responsibility of the Shari'ah advisory board.Unlike other advisory bodies, there is code of ethics and practice governs the performance of the consultant, for example Lawyers, Actuaries, accounts, and other professions there are code of ethics and misconduct governs the practice. The code of practice is to regulate the profession and make the consultant accountable to his clients for poor practice or misleading advice-causing financial losses, the consultant can be struck off and may be charges for serious misconduct. So far in the case of Shari'ah advisory board, there are neither code of ethics nor code of misconduct, although the decisions of Shari'ah Advisory Boards are binding, in relation to Shari'ah matter and that decision if wrong can cause the client and the community large sums of money. In this regard, they are not merely exercising an advisory role, but their roles are of great nature. Hence, because Shari'ah is the backbone of the industry, in certain countries or institutions, this body is called a Shari'ah Supervision Body, as it better describes the actual and intended role of the body. Observations of the various Shari'ah Advisory Boards around the globe will indicate that there are divergences in the Shari'ah governance system. The variation exists in relation to procedures, extent of power and levels of Shari'ah Advisory Bodies, composition of Shari'ah Advisory Bodies, determination of qualification of Shari'ah scholars, as well as Shari'ah and accounting standards applied. In certain countries, there is a Shari'ah Advisory Council at the central level, apart from the financial institution’s in-house Shari'ah Advisory Board. Therefore, the central Shari'ah Advisory Council might review the decisions or ijtihad made by the Shari'ah scholars in the respective financial institutions.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125437027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Acceptance of Islamic Banking in Muslim Customers","authors":"M. Baloch, M. Anjum","doi":"10.2139/ssrn.2835270","DOIUrl":"https://doi.org/10.2139/ssrn.2835270","url":null,"abstract":"The Islamic banking is one of the most rapidly emerging trends in many different parts of the world. Theinterest based banking system has now been very evident to the economies regarding their impacts on the economies and the individuals involved. The study analyzed the key determinants of the Islamic banking in the banking customers living in Peshawar KPK using a self-administered questionnaire to collect data from the customers. Using a multiple regression model the study analyzed the data collected from a sample of 45 respondents and the results of the study suggest that the positive aspects of the Islamic banking and the flaws of the interests based has a positive relationship with the acceptance of the Islamic banking in Muslims across Peshawar KPK.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129512617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Scope and Application of Wa' Ad, Muwa'Adah and Wa'Dan in Islamic Finance","authors":"Shafi‘i Abdul Azeez Bello","doi":"10.2139/SSRN.2178340","DOIUrl":"https://doi.org/10.2139/SSRN.2178340","url":null,"abstract":"Islamic laws cover all aspects of human behaviors and govern the Muslims ways of life. It is wider than the Western understanding of laws and they regulate Islamic transactions. Therefore, this paper demonstrates scope and application of Wa'ad (promise), Muwa'ada (promisor) and Wa'adan (two promises) in Islamic finance. Brief discussion on the definitions and legal principles of Wa'ad, Muwa'ada and Wa'adan from perspectives of Islamic law as well as the concept of wa'ad under common law were reported in the paper. Furthermore, the paper critically analyses the rules of wa'ad, muwa'adah and wa'adan in Islamic transaction (sales and purchase). Similarly, the concept and practice of wa'ad in Islamic banking system in Malaysia were also discussed. The applications of wa'ad also explain in Islamic banking products such as, use of wa'ad for foreign exchange option, Islamic financial market and foreign exchange option for a Multination bank. The paper ended with some illustrations about the use of wa'ad for short selling in Islamic finance.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126377423","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Drafting Egypt's Constitution: Can a New Legal Framework Revive a Flawed Transition?","authors":"T. Moustafa","doi":"10.2139/ssrn.2026954","DOIUrl":"https://doi.org/10.2139/ssrn.2026954","url":null,"abstract":"As the fundamental document establishing a framework for governance, the new Egyptian constitution will have a lasting effect on Egyptian law, politics, and society for years to come. However, Egypt’s transition is shaping up to be a case study in how not to initiate a constitution-writing process. If Egypt is to emerge with a stable constitutional order that protects basic rights, it will be in spite of the mismanaged transition dictated by the ruling Supreme Council of the Armed Forces (SCAF). This paper examines the most important issues and actors in Egypt’s constitution drafting process, with a special focus on how procedural deficits may result in substantive shortcomings in the new constitution itself. The paper draws attention to the gulf between “best practices” in constitutional design and the political realities of the Egyptian transition. Policy recommendations are presented in light of these realities.The English version of this paper can be found at: http://ssrn.com/abstract=2007085","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130724632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Advancing Women's Rights Through Islamic Law: The Example of Morocco","authors":"J. Hursh","doi":"10.15779/Z38DF6K29T","DOIUrl":"https://doi.org/10.15779/Z38DF6K29T","url":null,"abstract":"This article discusses the challenges and opportunities for advancing women’s rights through Islamic law using contemporary Morocco as a case study. Part I provides an overview of women’s rights in Morocco including the historic 2004 Mudawana (Code of Personal Status) reforms. Part II discusses the social roles, cultural representations, and socioeconomic realities of Moroccan women, emphasizing the important role that Moroccan women have played in legal and social reform efforts through their participation in civil society. Part III discusses several legal strategies for advancing women’s rights in Islamic states and assesses the strengths, weaknesses, and likely success of each approach. These strategies include implementing international law and secular reform, utilizing the Moroccan legislative process, reinterpreting the Qur’an and the hadith (the two primary sources of Islamic law), exercising ijtihad (resolving an Islamic legal issue through personal thought and reflection), and contesting the development of Shari’a. Part IV outlines the most promising strategy for advancing women’s rights in Islamic states. This final Part discusses failed reform strategies, outlines an effective reform strategy, and concludes that women’s rights are largely compatible with Shari’a provided the right social and political conditions exist.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128184995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Analysis of the Courts’ Decisions on Islamic Finance Disputes","authors":"Z. Hasan, M. Asutay","doi":"10.55188/ijif.v3i2.131","DOIUrl":"https://doi.org/10.55188/ijif.v3i2.131","url":null,"abstract":"Most Islamic financial institutions operate in an environment where the legislative framework consists of mixed legal systems where the Shari'ah (Islamic law) co-exists with common law and civil law legal systems. As such, every transaction, product, document and operation must comply with the Shari'ah principles as well as relevant laws, rules and regulations. In the case where Islamic law is the ultimate legal authority, such as in Iran and Saudi Arabia, any issue in Islamic banking cases may not pose a big problem; whilst in the countries of mixed legal systems as in the case of Malaysia or in a non-Islamic legal environment such as in the UK, the issue is very significant. This inherent issue will be more complicated if Islamic finance disputes involve parties from different jurisdictions in cross-border transactions. This leads to the question of how Shari'ah principles apply together with the laws of the jurisdiction and how a case will be adjudicated in a court. In view of this unresolved issue, this paper attempts to critically review and analyse the courts’ decisions on Islamic finance disputes in four different jurisdictions, namely Malaysia, the United Kingdom, India and the United States. With the emergence of Islamic finance litigation, this paper strongly advocates that a proper legal framework and infrastructure as well as the substantial support of the legal fraternity are the prerequisites for the advancement and significant growth of the Islamic finance industry.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"125 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127408053","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mahr as Contract: Internal Pluralism and External Perspectives","authors":"Katherine Spencer","doi":"10.15496/PUBLIKATION-36610","DOIUrl":"https://doi.org/10.15496/PUBLIKATION-36610","url":null,"abstract":"This paper examines the Islamic legal doctrine of mahr- an inherent component to the marriage contract. In the first part the principal aspects of the marriage contract are analyzed and the pluralism between Islamic schools and geo-political regimes are acknowledged. In the second part the 'mahr' itself is specifically considered, noting the difficulties for Western scholars in conceptualizing and categorizing a provision that has no equivalent in Judeo-Christian marriage. The third part looks at the ways in which US and UK courts have categorized the mahr as a contract, or a term within a contract and yet have reached different conclusions on its enforceability. This produces inconsistent and sometimes unfair results and begs the question whether the recognition of Islamic family law by 'Western' courts is inherently problematic. In the final section I attempt to answer some of those larger questions and conclude with the view that giving effect to mahr agreements as enforceable personal rights is judicially feasible - with the proviso however that in circumstances of profound unfairness and where contrary to public policy courts maintain the discretion to render such contracts unenforceable.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132340887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Debates on the Rights of Prisoners of War in Islamic Law","authors":"Muhammad Munir","doi":"10.2139/ssrn.1802006","DOIUrl":"https://doi.org/10.2139/ssrn.1802006","url":null,"abstract":"This paper explores the rights of protection available to the prisoners of war under Islamic law. It analyzes the differences of opinion among the early fuqaha’ regarding the POWs. The paper finds that the Qur’an mentions only two ways to terminate captivity, that is, mann (freedom gratis) and fida’ (ransom) (Qur’an 47: 4) a verse that was not superseded; that ransom was taken by the Prophet only from the POWs of Badr whereas the general practice of the Prophet (peace be on him) and his caliphs was to set POWs free without any condition or ransom. Non-Muslim states used to ask for ransom for the release of Muslim or non-Muslim POWs. In addition, enslavement of POWs as well as their execution had never been the general practice in Islam. Slaying the POWs had been very rare in Islamic military history. Finally, the Prophet and his caliphs had exchanged POWs on some occasions. Majority of classical Muslim jurists seem to have generalized exceptional cases regarding the execution and enslavement of POWs. The question of treatment has been debated particularly with reference to the La'ihah for the Mujahidin, a document issued by the Taliban in Afghanistan in 2010. The paper argues that The Taliban have created new rules for terminating the captivity of POWs but have wrongly attributed them to Islamic law.","PeriodicalId":269513,"journal":{"name":"Islamic Law & Law of the Muslim World eJournal","volume":"13 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128930241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}