{"title":"伊斯兰合同解释的新法律性:制度框架和意图的转移","authors":"Jonathan G. Ercanbrack, Ali Ali","doi":"10.1108/imefm-03-2024-0156","DOIUrl":null,"url":null,"abstract":"<h3>Purpose</h3>\n<p>This study aims to examine the extent to which traditional juristic approaches to determining intention in Islamic law are altered in the institutional framework and standard-setting project of the Malaysian state.</p><!--/ Abstract__block -->\n<h3>Design/methodology/approach</h3>\n<p>The study used the transnational law theory, which views normativity as culturally, socially and religiously embedded. The development of norms, customs and laws is also contingent on self-maximizing behavior. The Sharīʿa Advisory Council’s interpretation of the bayʿ al-ʿīnah standard is a case study of this approach to the development of law.</p><!--/ Abstract__block -->\n<h3>Findings</h3>\n<p>This study shows that traditional approaches to determining the validity of an Islamic contract have been displaced by the institutional logic of the state, which prioritizes uniformity and certainty in law and reflects liberal, Western and capitalistic values. Islamic standard setting is part of the state’s objective to uniformize law due to the globalization of financial markets. The normative collisions in the standard-setting project produce a new jurisprudence based on the state’s uniform and purposive determination of a contract’s validity.</p><!--/ Abstract__block -->\n<h3>Research limitations/implications</h3>\n<p>Further research on institutional frameworks is needed to conceptualize how Islamic commercial principles and ethics can be incentivized in the state’s legal systems.</p><!--/ Abstract__block -->\n<h3>Originality/value</h3>\n<p>Few works, if any, have examined the interaction of the state’s institutional environment with jurists’ traditional approaches to determining contractual intention. Most scholarship assumes the decisive role of market forces, but the role of law and institutions in this context is under-researched.</p><!--/ Abstract__block -->","PeriodicalId":47091,"journal":{"name":"International Journal of Islamic and Middle Eastern Finance and Management","volume":"5 1","pages":""},"PeriodicalIF":2.8000,"publicationDate":"2024-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"The new legalities of Islamic contractual interpretation: institutional frameworks and the displacement of intention\",\"authors\":\"Jonathan G. Ercanbrack, Ali Ali\",\"doi\":\"10.1108/imefm-03-2024-0156\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"<h3>Purpose</h3>\\n<p>This study aims to examine the extent to which traditional juristic approaches to determining intention in Islamic law are altered in the institutional framework and standard-setting project of the Malaysian state.</p><!--/ Abstract__block -->\\n<h3>Design/methodology/approach</h3>\\n<p>The study used the transnational law theory, which views normativity as culturally, socially and religiously embedded. The development of norms, customs and laws is also contingent on self-maximizing behavior. The Sharīʿa Advisory Council’s interpretation of the bayʿ al-ʿīnah standard is a case study of this approach to the development of law.</p><!--/ Abstract__block -->\\n<h3>Findings</h3>\\n<p>This study shows that traditional approaches to determining the validity of an Islamic contract have been displaced by the institutional logic of the state, which prioritizes uniformity and certainty in law and reflects liberal, Western and capitalistic values. Islamic standard setting is part of the state’s objective to uniformize law due to the globalization of financial markets. The normative collisions in the standard-setting project produce a new jurisprudence based on the state’s uniform and purposive determination of a contract’s validity.</p><!--/ Abstract__block -->\\n<h3>Research limitations/implications</h3>\\n<p>Further research on institutional frameworks is needed to conceptualize how Islamic commercial principles and ethics can be incentivized in the state’s legal systems.</p><!--/ Abstract__block -->\\n<h3>Originality/value</h3>\\n<p>Few works, if any, have examined the interaction of the state’s institutional environment with jurists’ traditional approaches to determining contractual intention. Most scholarship assumes the decisive role of market forces, but the role of law and institutions in this context is under-researched.</p><!--/ Abstract__block -->\",\"PeriodicalId\":47091,\"journal\":{\"name\":\"International Journal of Islamic and Middle Eastern Finance and Management\",\"volume\":\"5 1\",\"pages\":\"\"},\"PeriodicalIF\":2.8000,\"publicationDate\":\"2024-09-03\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"International Journal of Islamic and Middle Eastern Finance and Management\",\"FirstCategoryId\":\"96\",\"ListUrlMain\":\"https://doi.org/10.1108/imefm-03-2024-0156\",\"RegionNum\":3,\"RegionCategory\":\"经济学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q2\",\"JCRName\":\"BUSINESS, FINANCE\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"International Journal of Islamic and Middle Eastern Finance and Management","FirstCategoryId":"96","ListUrlMain":"https://doi.org/10.1108/imefm-03-2024-0156","RegionNum":3,"RegionCategory":"经济学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"BUSINESS, FINANCE","Score":null,"Total":0}
The new legalities of Islamic contractual interpretation: institutional frameworks and the displacement of intention
Purpose
This study aims to examine the extent to which traditional juristic approaches to determining intention in Islamic law are altered in the institutional framework and standard-setting project of the Malaysian state.
Design/methodology/approach
The study used the transnational law theory, which views normativity as culturally, socially and religiously embedded. The development of norms, customs and laws is also contingent on self-maximizing behavior. The Sharīʿa Advisory Council’s interpretation of the bayʿ al-ʿīnah standard is a case study of this approach to the development of law.
Findings
This study shows that traditional approaches to determining the validity of an Islamic contract have been displaced by the institutional logic of the state, which prioritizes uniformity and certainty in law and reflects liberal, Western and capitalistic values. Islamic standard setting is part of the state’s objective to uniformize law due to the globalization of financial markets. The normative collisions in the standard-setting project produce a new jurisprudence based on the state’s uniform and purposive determination of a contract’s validity.
Research limitations/implications
Further research on institutional frameworks is needed to conceptualize how Islamic commercial principles and ethics can be incentivized in the state’s legal systems.
Originality/value
Few works, if any, have examined the interaction of the state’s institutional environment with jurists’ traditional approaches to determining contractual intention. Most scholarship assumes the decisive role of market forces, but the role of law and institutions in this context is under-researched.
期刊介绍:
The International Journal of Islamic and Middle Eastern Finance and Management (IMEFM) publishes quality and in-depth analysis on current issues within Islamic and Middle Eastern finance and management. The journal welcomes strong evidence-based empirical studies and results-focused case studies that share research in product development and clarify best practices. The title is also keen to consider work from emerging authors. IMEFM has just also accepted into Clarivate''s SSCI in 2018, and its IF will be available in summer 2019, with citations dating from 2016. The coverage includes but is not limited to: -Islamic finance: Fundamentals, trends and opportunities in Islamic Finance, Islamic banking and financial markets, Risk management, Corporate finance, Investment strategy, Islamic social finance, Financial planning, Housing finance, Legal and regulatory issues, -Islamic management: Corporate governance, Customer relationship management and service quality, Business ethics and corporate social responsibility, Management styles and strategies in Shariah environments, Labour and welfare economics, Political economy. The journal is the only title aiming to give an interdisciplinary and holistic view on Islamic finance and business management practices in order to inform these two intertwined communities.