Search results for: Islamic legal system

Authors: Alireza Tavakoli Nia

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In order to understand the role of the injured party's fault in dividing liability, we studied its historical background. In common law, the traditional contributory negligence rule was a complete defense. Then the legislature and judicial procedure modified that rule to one of apportionment. In Islamic law, too, the Action rule was at first used when the injured party was the sole cause, but jurists expanded the scope of this rule, so this rule was used in cases where both the injured party's fault and that of the other party are involved. There are some popular approaches for apportionment of damages. Some common law countries like Britain had chosen ‘the causal potency approach’ and ‘fixed apportionment’. Islamic countries like Iran have chosen both ‘the relative blameworthiness’ and ‘equal apportionment’ approaches. The article concludes that both common law and Islamic law believe in the division of responsibility between a wrongdoer claimant and the defendant. In contrast, in the apportionment of responsibility, Islamic law mostly believes in equal apportionment that is way easier and saves time and money, but common law legal systems have chosen the causal potency approach, which is more complicated than the rival approach but is fairer.

Keywords: contributory negligence, tort law, damage apportionment, common law, Islamic law

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Authors: Le Bich Thuy

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A trust is an alien notion in Vietnamese law until 2021, which not only dissatisfies the practical demands of the nation’s civilians but also results in some detrimental shortcomings. The Judicial Case Law No 2 to be applied in adjudicating subsequent cases is a typical example of such negative consequences, implying a need for an application of trust law into Vietnam’s legal system. This paper first presents the similarity in nature between parties’ relationship in the mentioned case and a proprietary trust relationship, followed by an analysis of such a case from a trusted perspective. Subsequently, an introduction of potential obstacles hindering the introduction of trust law into the Vietnamese legal framework is presented. Finally, some implications are suggested for perfecting Vietnam’s legal system.

Keywords: Vietnamese case law no 2, trust law, private property management, patrimony

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Authors: Muhammad Ali Khan

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Although most Muslims are aware that Riba is a great sin in Islamic Shariah, they still do not find themselves inclined toward Islamic banking for their financial needs/activities/requirements. The main purpose of this research work is to analyse the general trend of people's views and miss conceptions among them regarding Islamic Banking and therefore suggest promoting Islamic banking. Scholars believe that Islamic finance is more stable than conventional banking because of the nature of its banking practices, which are based on real assets or partnerships. This is why Islamic banking is growing fastly worldwide, particularly in the wake of global financial crisis. Even though the scope of Islamic banking is expanding on a daily basis yet, it is not gaining the popularity it deserves. Islam declares war against Allah and his last messenger Hazrat Muhammad (PBUM) as it is a great sin and strictly forbids all interest-based transactions. Holy Quran revealed, O you who believe, do not eat up the amounts acquired through Riba (interest), doubled and multiplied. Fear Allah, so that you may be successful. Therefore a, true Muslim who believe in Judgement day always make all efforts in their life to avoid gambling and other speculative activities like Riba for themselves and their loved ones. If a Muslim does not fight against Riba to protect himself and his family, then his faith is meaningless. Allah issues warnings at numerous places in the holy Quran regarding Riba and its sin. Thus, Islamic banking is an alternative banking system where banking transactions are based on Islamic principles. The major component of Islamic Banking is Profit and loss sharing (PLS), as well as ensuring economic justice and equity.

Keywords: Islamic banking, Riba, interest, financial crises

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Authors: Zareen Khan

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Islamic Banking has experienced high growth in Pakistan in recent years and has successfully survived the economic downturn of 2009-2011. Despite the increase in branch network and expansion of services, it is unclear if Islamic banks are truly following the theory and practical application of Shariah Law. This paper explores the theological basis of Islamic finance and examines the discrepancies between the theory and practice of Islamic banking using Pakistan as a case study. It discusses areas where Islamic banks lack proper Shariah compliance and analyzes the financial weaknesses of Islamic banks in terms of the services offered. Furthermore, the paper offers plausible explanations for the clientele of Islamic banks. The case study has three major findings. Firstly, most of the employees of Islamic banks come from conventional banking backgrounds and the banks have to invest in additional trainings to specialize employees in Islamic Banking. Secondly despite the efforts of State Bank of Pakistan, there is a lack of accounting and auditing standards tailored for Islamic Banking. Thirdly, majority of the clients of Islamic banks in Pakistan are accustomed to conventional banking causing the bankers to “speak the conventional banking language.” Combined, these three factors can create gaps in the practical application of Islamic finance in Islamic banks in Pakistan.

Keywords: islamic finance, comparing theory with practice, islamic banking, Pakistan

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Authors: B. Ashraf, A. M. Malik

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The study was accomplished at the Department of Economics and Agriculture Economics, Pir Mahar Ali Shah ARID Agriculture University, Punjab, Pakistan during 2013-16 with a purpose to discover the effect of Islamic finance/banking on employment in Punjab, Pakistan. Islamic banking system is sub-component of conventional banking system in various countries of the world; however, in Pakistan, it has been established as a separate Islamic banking system. The Islamic banking operates under the doctrine of Shariah. It is claimed that the referred banking is free of interest (Riba) and addresses the philosophy and basic values of Islam in finance that reduces the factors of uncertainty, risk and others speculative activities. Two Islamic bank’s; Meezan Bank Limited (Pakistan) and Al-Baraka Bank Limited (Pakistan) from North Punjab (Bahawalnagar) and central Punjab (Lahore) west Punjab (Gujrat), Pakistan were randomly selected for the conduct of research. A total of 206 samples were collected from the define areas and banks through questionnaire. The data was analyzed by using the Statistical Package for Social Sciences (SPSS) version 21.0. Multiple linear regressions were applied to prove the hypothesis. The results revealed that the assets formation had significant positive; whereas, the technology, length of business (experience) and bossiness size had significant negative impact with employment generation in Islamic finance/banking in Punjab, Pakistan. This concludes that the employment opportunities may be created in the country by extending the finance to business/firms to start new business and increase the Public awareness by the Islamic banks through intensive publicity. However; Islamic financial institutions may be encouraged by Government as it enhances the employment in the country.

Keywords: assets formation, borrowers, employment generation, Islamic banks, Islamic finance

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Authors: Md Abu Saieed

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Crafting and implementing public policy is one of the indispensable works in any form of state and government. But the policy objectives, methods of formulation and tools of implementation might be different based on the ideological nature, historical legacy, structure and capacity of administration and management and other push and factors. Public policy in Islamic economic system needs to be based on the key guidelines of divine scriptures along with other sources of sharia’h. As a representative of Allah (SWT), the governor and other apparatus of the state will formulate and implement public policies which will enable to establish a true welfare state based on justice, equity and equality. The whole life of Prophet Muhammad (pbuh) and his policy in operating state of affairs in Madina is the practical guidelines for the policy actors and professionals in Islamic system of economics. Moreover, policy makers need to be more meticulous in formulating Islamic public policy which meets the needs and demands of contemporary worlds as well.

Keywords: formulation, Islam, public policy, policy factors, Sharia’h

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Authors: Ibtissam Mharzi Alaoui, Camélia Sehaqui

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The success of a bank depends upon its effective risk management. With the growing complexity and diversity of financial products and services, as well as the accelerating pace of globalization over the past decade, risk management is becoming increasingly difficult. thus, all measurement and monitoring functions must be much more vigorous, relevant and adequate. The Shariah non-compliance risk is specific aspect of Islamic finance which ipso facto, deserves particular attention. It affects the validity of all Islamic financial contracts and it turns out to be likely to result in considerable losses on the overall Islamic financial institutions (IFIs). The purpose of this paper is to review the theoretical literature on Shariah non-compliance risk in order to give a clearer understanding of its sources, causes and consequences. Our intention through this work is to bring added value to the Islamic finance industry all over the world. The findings provide a useful reference work for the Islamic banks in structuring (or restructuring) of their own system of shariah risk management and internal control.

Keywords: Shariah non-compliance, risk management, financial products, Islamic finance.

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Authors: Abdul Nasir Zamir

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After the downfall of Ottoman Caliphate, it scattered into different small Muslim states. Muslim leaders, intellectuals, revivalists as well as modernists started trying to boost up their nation. Some Muslims are also trying to establish the caliphate. Every Muslim country has its own political system, i.e., kingship, dictatorship or democracy, etc. But these are not in their original forms as the historian or political science discussed in their studies. The laws and their practice are mixed, i.e., others with Islamic laws, e.g., Saudi Arabia (K.S.A) and the Islamic Republic of Pakistan, etc. There is great conflict among the revivalist Muslim parties (groups) and governments about political systems. The question is that the subject matter is Sharia or political system? Leaders of Modern Muslim states are alleged as disbelievers due to neglecting the revelation in their laws and decisions. There are two types of laws; Islamic laws and management laws. The conflict is that the non-Islamic laws are in practice in Muslim states. Non-Islamic laws can be gradually changed with Islamic laws with a legal and peaceful process according to the practice of former Muslim leaders and scholars. The bloodshed of Muslims is not allowed in any case. Weak Muslim state is a blessing than nothing. The political system after Muhammad and guided caliphs is considered as kingship. But during this period Muslims not only developed in science and technology but conquered many territories also. If the original aim is in practice, then the Modern Muslim states can be stabled with different political systems. Modern Muslim states are the hope of survival, stability, and development of Muslim Ummah. Islam does not allow arm clash with Muslim army or Muslim civilians. The caliphate is based on believing in one Allah Almighty and good deeds according to Quran and Sunnah. As faith became weak and good deeds became less from its standard level, caliphate automatically became weak and even ended. The last weak caliphate was Ottoman Caliphate which was a hope of all the Muslims of the world. There is no caliphate or caliph present in the world. But every Muslim country or state is like an Amarat (a part of caliphate or small and alternate form of the caliphate) of Muslims. It is the duty of all Muslims to stable these modern Muslim states with tolerance.

Keywords: caliphate, conflict resolution, modern Muslim state, political conflicts, political systems, tolerance

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Authors: Bouchaib Gazzaz, Mounir Mehdi

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In order to ensure consumer food protection, the food industry has a legal obligation to provide food products that comply with the requirements of the legislation in force. National regulations in this area occupy an important place in the food control system in terms of consumer protection. This article discusses the legal and regulatory framework of food safety and consumer protection in Moroccan law. We used the doctrinal research approach by analyzing the judicial normative and bibliographic legal research. As a result, we were able to present the basic principles of consumer food protection by showing to what extent the food safety law provides effective consumer protection in Morocco. We have concluded that there is an impact -in terms of consumer legal protection- of food law reform on the concept of food safety.

Keywords: food safety, Morocco, consumer protection, framework, food law

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Authors: Yahaya Sulaiman, Ibrahim Muhammad Yakuba, Abubakar Usman

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In this paper, we discuss that Sustainable Development Goals are in consonance with Islamic ethos and philosophy. Islam made emphasize on human well-being from spiritual, physiological, intellectual and economic perspectives. Islamic worldview and values framework strengthens moral consciousness, urge pro-social behaviour and engender environmental ethics which can help in influencing our attitudes towards meeting sustainable development challenges. Islamic social finance institutions like Zakat and Waqf can contribute towards scaling up efforts in commercially non-viable, but socially vital projects and programs. There is much potential for Islamic finance to promote sustainable economic development through such approaches as widening access to finance, financing infrastructure projects, and expanding the reach of Takaful. Real sector based productive enterprise in Islamic finance has positive implications for the ecosystem. Risk-sharing shifts the emphasis from credit-worthiness of the borrower to be placed on the value creation and economic viability of investments that create new wealth. Islamic social finance package can cater to the financially excluded households.

Keywords: assessment, Islamic, economic, sustainable, development

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Authors: Mohd Adib Abd Muin

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Social entrepreneurship has become a new phenomenon in a country in order to reduce social problems and eradicate poverty communities. However, the study based on Islamic social entrepreneurship from the social entrepreneurial activity is still new especially in the Islamic perspective. In addition, this research found that is lacking of model on social entrepreneurship that focus on Islamic perspective. Therefore, the objective of this paper is to identify the issues and research gap based on Islamic perspective from existing models and to develop a concept of Islamic social entrepreneurship according to Islamic perspective and Maqasid Shari’ah. The research method used in this study is literature review and comparative analysis from 11 existing models of social entrepreneurship. The research finding shows that 11 existing models on social entrepreneurship has been analyzed and it shows that the existing models on social entrepreneurship do not emphasize on Islamic perspective.

Keywords: component, social entrepreneurship, Islamic perspective, research gap

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Authors: Puji Sucia Sukmaningrum, Achsania Hendratmi, Noven Suprayogi, Muhammad Madyan

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Theoretically, Islamic banks in Indonesia and Malaysia not necessarily aware to the interest rate fluctuation, since they don’t use interest-based instruments. Both countries use dual banking system in which Islamic and conventional banking system are exist. This situation makes the profit-sharing level of the Islamic banks will be indirectly affected by the interest rate fluctuation from the conventional banks system. One of the risk management tools for anticipating the risk of interest rate fluctuation is gap management, which has purpose to narrow the difference between Rate Sensitive Asset (RSA) and Rate Sensitive Liability (RSL). This formed gap will give the information about the risk potential in Islamic banks which respect to the fluctuation on the interest rate. This study aims to determine the position of the gap formed at Islamic Maybank Indonesia and Islamic Maybank Malaysia, and analyze the difference in the formation of gap based on the period of sensitivity. This study is a quantitative research with comparative study using sensitivity gap analysis, independent sample t-test, and Mann-Whitney method. The data being used was secondary data from Maturity Profile contained in the Annual Financial Report of Islamic Maybank Indonesia and Islamic Maybank Malaysia from 2011 to 2015 period. The result shows that, cumulatively the formation of the gap was negative gap. From the results of independent sample t-test and Mann-Whitney, the formation of the gap in Islamic Maybank Indonesia and Islamic Maybank Malaysia for a period of sensitivity of ≤ 1 month and >1-3 months show a significant difference, while the period of sensitivity >3-12 months does not. The result shows, even though Indonesia and Malaysia using same dual banking systems, the gap values are different. The difference in debt policy between Indonesia and Malaysia also affecting the gap sensitivity in debt. In can be concluded that each country needs an appropriate gap management to support its Islamic banking performance specifically.

Keywords: assets and liability management, gap management, interest rate risk, Islamic bank

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Authors: Nirmalasanti Pramesi

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In 2004 the CLD KHI Team offered several new ideas in the field of Islamic family law, such as marriage, inheritance (waris), and waqf. The new idea is based on six main principles; pluralism, nationality, human rights, democracy, maslahah, and gender equality. However, the existence of this has actually caused various criticisms, appreciations, and controversies. For this reason, CLD-KHI, as the idea of reforming family law, especially in the field of marriage, really needs to be studied academically with a comprehensive method as an unfinished problem. The main issues examined in this study are what are the ideas for reforming the law of marriage that have been formulated by the CLD KHI team, as well as how to implement Maqasid Sharia in legal reform. The methodology used in this research is a qualitative method with a normative-empirical-sociological approach. The results of this research show every substance of the idea considers aspects of locality, nationality, and global ethics. The Maqasid approach used in most of the legal provisions is moderate (wasati). Meanwhile, in matters of wali niqah and inheritance, it is adjusted to the context of Indonesian society.

Keywords: Maqasid syari'ah, CLD KHI, marriage law reform, moderate

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Authors: Ahmad Masduki Bin Selamat, Kang Chia Yang

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The International Standard Organization (ISO) is an international consensus on good management practice. It is derived from the Greek word “isos” meaning equal. ISO is aimed to give organization guidelines on what bring quality management system that leads to continuous improvement. The need of quality product is essential these days, especially in the manufacturing and service sectors. The requirement to produce good product is demanded, hence the certification of ISO enables the company to gain the trust from the public. Due to this, organizations whether government or private sectors in Malaysia are going for the ISO certification. However recently there has been an introduction of Islamic standard known as Islamic Standard Institute 2020 (ISI 2020). The ISI standards emphasize more on values that should be in the employees’ mind. By possessing good values, employees will work only for the betterment of the company. Currently only the feelings of being paid for the job exist in the employees’ mind. The non-Malays like Chinese and others, which comprise 40% of the sample size, are not aware about the existence of any Islamic quality system. As for the Malay managers, they support the Islamic quality systems. For them such values are encouraged by religion. By imitating religion, Allah promises a better life in this world and hereafter. Even though ISI 2020 is still new but the majority of Malays would support the need of Islamic quality system. Our findings suggest that integration of these two-quality systems running parallel would bring a better result.

Keywords: International Standard Organization (ISO), Islamic standard, quality, ISI 2020

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Authors: Ahmad Abdulkadir Ibrahim

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Observation of the methodology of Islamic economics laid down for the methods and instruments of analysis and even some of its basic assumptions in the modern world; is a matter that is of paramount importance. There is a need to examine the implications of different suggested definitions of Islamic economics, exploring its scope and attempting to outline its methodology. This paper attempts to deal with the definition of Islamic economics, its methodology, and its scope. It will outline the main methodological problem by addressing the question of whether Islamic economics calls for a methodology of its own or as an expanded economics. It also aims at drawing the attention of economists in the modern world to the obligation and consideration of the methodology of Islamic economics. The methodology adopted in this research is library research through the consultation of relevant literature, which focuses on the thematic study of the subject matter. This is followed by an analysis and discussion of the contents of the materials used. It is concluded that there is a certain degree of inconsistency in the way assumptions are incorporated that perhaps are alien to Islamic economics. The paper also observed that there is a difference between Islamic economists and other (conventional) economists in the profession. An important conclusion is that Islamic economists need to rethink what economics is all about and whether we really have to create an alternative to economics in the form of Islamic economics or simply have an Islamic perspective of the same discipline.

Keywords: methodology, Islamic economics, conventional economics, Muslim economists, framework, knowledge

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Authors: Amira Kaddour, Hedia Teraoui, Khmayes Bougatef

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The main purpose of this paper is to determine the major causes of the underdevelopment of Islamic finance in Tunisia. Indeed, it’s surprising to note that Zitouna bank established in May 2010 is the first Islamic Tunisian bank although 99% of Tunisians are Muslim and Islam is the religion of the State according to the Constitution. So we rely in our paper on the opinions of number of professors of finance and economics as educated people to prove or reject our hypothesis that the underdevelopment of Islamic finance in Tunisia can be explained by the ignorance of its main principles and advantages. Ours findings reveal that this branch of finance is still largely unknown, not only from public but also from professionals. The results obtained surprisingly show that this insignificance of Islamic banking cannot be explained by the fact that Tunisia has been governed since its independence by a secular left-wing party. Indeed, only 3% of respondents believe that legislation and regulation in Tunisia represent an obstacle to the development of Islamic finance. Moreover, respondents are not very optimistic about the future role of Islamic financing.

Keywords: Islamic banking, Islamic insurance (takaful), Islamic law (shariah), usury (riba)

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Authors: Zidane Abderrezaq

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This paper’s primary objective is to identify the relative importance of various Islamic financial products, in theory and in practice, by examining the financing records of the Bank Islam Malaysia (Berhad) and the Algeria Islamic Bank. Currently, seven available Islamic financing products are considered viable alternatives to interest-based conventional contracts: mudarabah (trust financing), musharakah (equity financing), ijarah (lease financing), murabahah (trade financing), qard al-hassan (welfare loan), bay` bi al-thaman al-ajil (deferred payment financing), and istisna` (progressive payments). Among these financial products, mudarabah and musharakah are the most distinct. Their unique characteristics (at least in theory) make Islamic banks and Islamic financing viable alternatives to the conventional interest-based financial system. The question before us is to determine the extent of mudarabah and musharakah in Islamic financing in practice. The data are as follows: the average mudarabah is 5% of total financing, and the average musharakah is less than 3%. The combined average of mudarabah and musharakah for the two Islamic banks is less than 4% of the total finance and advances. The average qard al-hassan is about 4%, while istisna` does not yet exist in practice. Murabahah is the most popular and dominates all other modes of Islamic financing. The average use of murabahah is over 54%. When the bay` bi al-thaman al-ajil is added to the murabahah, the percentage of total financing is shown to be 82.68%. This paper also explores some possible reasons why these two Islamic banks appear to prefer murabahah to mudarabah and musharakah.

Keywords: Islamic banking, Islamic finance, Islamic banking rofitability, investment banking

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Authors: Tianqi Yin

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The sharia had been the legislative basis in the Ottoman Empire since its emergence. The authority of sharia was superlative in the Islamic society compared to the power of the sulta, the nominal ruler of the nation, regulating essentially every aspect of people’s lives according to an ethical code. In modernity, however, as European sovereignty employed forces to re-engineer the Islamic world to make it more like their own, a society ruled by a state, the Ottoman legislation system encountered a great challenge of adopting codified laws to replace sharia with the formulation of the Mecelle being a prominent case. Interpretations of this transformation have been contentious, with the key debate revolving around whether these codified laws are authentic representations of sharia or alien legal formulations authorized by the modern nation-state under heavy European colonial influence. Because of the difference in methodology of the diverse theories, challenges toward having a universal conclusion on this issue remain. This paper argues that the formulation of the Mecelle and other codified laws is a discontinuity of sharia due to European modernity’s influence and that the emphasis on elements of Islamic laws is a tactic employed to promote this process. These codified laws signals a complete social transformation from the Islamic society ruled by the sharia to a replication of the European society that is ruled by a comprehensive ruling system of the modern state. In addition to advancing the discussion on the characterization of the codification movement in the Ottoman Empire in modernity, the research also promotes the determination of the nature of the modern codification movement globally.

Keywords: codification, mecelle, modernity, sharia, ottoman empire

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Authors: Nhac Thanh Huong

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Legal English, also known as Language of the Law (Mellinkoff, David. 2004), is an indispensable factor contributing to the development of legal field. At Hanoi Law University, legal English is a compulsory subject in the syllabus of legal English major; International Trade law and Fast-track law training program. The question that what obstacles students face with when dealing with legal English, however, has not been answered at that institution. Therefore, this present research, which makes use of survey questionnaires as the main method, aims to study the challenges of learning legal English from the students’ perspective, from which some useful solutions are drawn up to overcome these difficulties and improve the effectiveness of learning legal English. The results indicate notable difficulties arising from the level of general English skills, the characteristics of legal English and legal background knowledge. These findings lay a scientific foundation for suggesting some solutions for practical applications in teaching as well as learning legal English among both teachers and students.

Keywords: challenges, HLU, Legal English, students' perspective

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Authors: Vandana Kumari

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One of the most ancient and detailed legal codes proclaimed the Babylonian King Hammurabi during his reign in the erstwhile Mesopotamian society, provides a fascinating account of the social and justice system of Babylon. The 282 laws intricately carved on eight feet black stone stela serve as an important source of contemporary commercial, family and criminals laws. This paper attempts an inquiry into the contemporary relevance of this legal code to our current legal system. An exhaustive study of one of ancient legal system based on a series of practical experiences rather than being founded on mere theoretical ideologies can be assumed pertinent to the promulgation of practically viable laws in our country. The first chapter of the paper focuses on law seven which established the rules of commerce and the role of government in overseeing justice and honesty regarding the law of property. The second chapter deals with the laws of family, marriages, divorce and adoption prevailing in the Babylonian era. The third chapter traces the earliest known history of criminal jurisprudence which impregnated the principle of an eye for an eye. The paper is not merely a theoretical account of the Mesopotamian way of living but a novice attempt to discover the roots of Indian laws in the ruins of the courtrooms of the Hammurabi Empire.

Keywords: Babylonian legal system, Contemporary relevance, criminal jurisprudence, Hammurabi Code

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Authors: Malik Shahzad Shabbir, Muhammad Saarim Ghazi, Amir Khalil ur Rehman

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This study examines the factors which influence and contribute towards the financial viability of Islamic finance and its impact on global financial stability. However, the purpose of this paper is to differentiate the practical implications of both Islamic and conventional finance on global financial stability. The Islamic finance is asset backed financing which creates wealth through trade, commerce and believes in risk and return sharing. Islamic banking is asset driven as against to conventional banking which is liability driven. In order to introduce new financial products for market, financial innovation in Islamic finance must be within the Shari’ah parameters that are tested against the ‘Maqasid al-Shari’ah’. Interest-based system leads to income and wealth inequalities and mis-allocation of resources. Moreover, this system has absence of just and equitable aspect of distribution that may exploit either the debt holder or the financier. Such implications are reached to a tipping point that leaves only one choice: change or face continued decline and misery.

Keywords: viability, global financial stability, practical implications, asset driven, tipping point

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Authors: Sumeyra Yakar, Emine Enise Yakar

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Iran presents itself as Islamic, first and foremost, and thus, it can be said that sharī’a is the political and social centre of the states. However, actual practice reveals distinct interpretations and understandings of the sharī’a. The research can be categorised inside the framework of logic in Islamic law and theology. The first task of this paper will be to identify how the sharī’a is understood in Iran by mapping out how the judges apply the law in their respective jurisdictions. The attention will then move from a simple description of the diversity of sharī’a understandings to the question of how that diversity relates to social concepts and cultures. This, of course, necessitates a brief exploration of Iran’s historical background which will also allow for an understanding of sectarian influences and the significance of certain events. The main purpose is to reach an understanding of the process of applying sources to formulate solutions which are in accordance with sharī’a and how religious education is pursued in order to become official judges. Ultimately, this essay will explore the attempts to gain an understanding by linking the practices to the secondary sources of Islamic law. It is important to emphasise that these cultural components of Islamic law must be compatible with the aims of Islamic law and their fundamental sources. The sharī’a consists of more than just legal doctrines (fiqh) and interpretive activities (ijtihād). Its contextual and theoretical framework reveals a close relationship with cultural and historical elements of society. This has meant that its traditional reproduction over time has relied on being embedded into a highly particular form of life. Thus, as acknowledged by pre-modern jurists, the sharī’a encompasses a comprehensive approach to the requirements of justice in legal, historical and political contexts. In theological and legal areas that have the specific authority of tradition, Iran adheres to Shīa’ doctrine, and this explains why the Shīa’ religious establishment maintains a dominant position in matters relating to law and the interpretation of sharī’a. The statements and interpretations of the tradition are distinctly different from sunnī interpretations, and so the use of different sources could be understood as the main reason for the discrepancies in the application of sharī’a between Iran and other Muslim countries. The sharī’a has often accommodated prevailing customs; moreover, it has developed legal mechanisms to all for its adaptation to particular needs and circumstances in society. While jurists may operate within the realm of governance and politics, the moral authority of the sharī’a ensures that these actors legitimate their actions with reference to God’s commands. The Iranian regime enshrines the principle of vilāyāt-i faqīh (guardianship of the jurist) which enables jurists to solve the conflict between law as an ideal system, in theory, and law in practice. The paper aims to show how the religious, educational system works in harmony with the governmental authorities with the concept of vilāyāt-i faqīh in Iran and contributes to the creation of religious custom in the society.

Keywords: guardianship of the jurist (vilāyāt-i faqīh), imitation (taqlīd), seminaries (hawza), Shi’i jurisprudence

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Authors: Yusuf Sani Abubakar

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This paper investigates mechanisms of settlement of disputes at the Islamic Financial Institutions (IFIs). Dispute settlement at the Islamic Financial Institutions (IFIs) can be both through litigation as well as Alternative Dispute Resolution (ADR). The paper aims to investigate how disputes are settled at the Islamic Financial Institutions (IFIs), as it is natural to have disagreements between different parties involved in the business of Islamic Financial Institutions (IFIs). The paper adopts a qualitative methodology where the sources are taken from journals, books, websites etc. In analyzing the data obtained from the sources, content analysis will be used. In addition to writings on this topic by various writers, this paper will add to the literature and will recommend certain effective ways of solving disputes arising between parties participating in the business of Islamic Financial Institutions (IFIs).

Keywords: Islamic finance, dispute resolution, Islamic financial institutions, litigation

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Authors: Mohammad Sadeghi, Mahdieh Saniee

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Nowadays, development laws have become a major branch of engineering science, laws help humankind achieve his/her basic needs, and it is attracted to the attention of the nations. Therefore, lawyers have been invited to contemplate legislator's approaches respecting legislating countries' economic, social and cultural development plans and to observe the reliance of approaches on two elements of distributive justice and transitional justice in light of legal rationality. Legal rationality in development planning has encountered us with this question that whether a rational approach and existing models in the Iran development planning system approximate us to the goal of development laws respecting the rationalist approach and also regarding wisely decision-making model. The present study will investigate processes, approaches, and damages of development planning in the legislation of country development plans to answer this question.

Keywords: rationality, decision-making process, policymaking, development

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Authors: Ilhan Keskin, Hasan Bulent Kantarci

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In this study, one of the tools of Islamic financing known as “Sukuk” a non-interest bearing investment which has started to be implemented in Turkey and the world as a whole is discussed. In order to increase the vitality and efficiency of the economy, by taking lessons from the recent economic crisis new developments in the banking and investment sector are being expanded. The purpose of all investors is to obtain more revenue through the use of capital. The inability of traditional investment tools to meet the expectations of investors and the interest based financial system where one investor benefits at the expense of another there has been the need for a different, reliable and non-interest bearing financial market that is consistent with the Islamic rule. As a result an alternative and more reliable interest free financing tool “Sukuk” rental certificates covering people who are sensitive to Islamic rules, appeal to all segments, hidden remaining capital that contributes to the economy, reduce disparities in income distribution, common risk sharing system of profit and loss sharing has emerged. Today, for the structural countries by examining the state of the world market economy the applicability, enactment and future issues associated with this attractive kind of Islamic finance namely the “Sukuk” market has been explained.

Keywords: Islamic finance, islamic markets, non-interest bearing, rental certificates

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Authors: Nasurullah Qureshi

Abstract:

Shaikh Ahmad Sirhindi Mujadid Alif Thani (1564-1624) and his philosophy had influenced sub-continent as the whole; its rulers and nation. In his reign, he convinced the rulers toward Islamic way of life and succeed in his goal. After his death in 1624, his family consecutively produced prominent scholars to present. Some of them moved to Afghanistan and Pakistan's cities i.e., Jalalabad, Qandhar, Peshawar, Queta, Shikarpur, Hyderabad, and Sehwan. They played a vital role in their areas and transmitted spiritual and legal Islamic teachings to people. This research is aimed to elaborate efforts of the family's Sindh settled branch from 1898-present in fields of politics and Islamic education. Their link with Shaikh Ahmad Sirhindi will be provided in the introduction. After that, the work will explain their scholarly published work briefly in different fields of Islamic studies such as Quran exegeses and its translation in Sindhi language, Hadith and its sciences, Islamic Jurisprudence, Sufism and etc. In addition, their political role will be briefly discussed in the research throughout the period, especially their noticeable role in the separate homeland for Muslims in the subcontinent. Furthermore, the impact of their scholarly work, political influence and spirituality will be enlightened. Lastly, the research will present the critical viewpoint on their struggle.

Keywords: Shaikh Ahmad Sirhindi, Sirhindi scholars, Sindh, Sufism

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Authors: Ahmad Dahlan, Aries Indrianto

Abstract:

Conceptually, mudarabah is the practice of fiqh (jurisprudence) in the bank institutions business that became the basis of the economic development model of modern Islamic financial system. In mudarabah, profit and loss sharing mechanism are integrated between mudarabah on liability side (funding) with mudarabah on the asset side (financing). Islamic (Sharia) Bank is positioned as an intermediary institution like investment manager, although the bank is also involved in direct investment based on bank equity. In practice, mudarabah cannot be done as much as effective at financing because the dominance of debt-financing products. This is a major criticism among experts and Islamic banks practitioners. Ironically, the criticism gets less attention by practitioners of Islamic banks due to many factors. The epistemologies of Islamic banks prioritize shareholder values than stakeholder values, and social culture that has not been ready with the mudarabah totally.

Keywords: two tier mudarabah, intermediary institution, shareholder value, stakeholder value

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Authors: Sabur Mollah, Asma Mobarek

Abstract:

This study aims to explore the endogenous relationship between Shari’ah governance and board governance for Islamic banks to identify complementary or substituting relationship between these governance parameters. By using a sample of 161 Islamic Banks from 24 countries for the period of 2005-2013, we show an endogenous relationship between Shari’ah Supervisory Board (SSB) and Board of Directors (BoD). In this relationship, SSB and BoD complement each other. We also show that this complementary relationship between SSB and BoD helps enhance both management and asset quality, but mitigates capital adequacy, earnings, and liquidity in Islamic banks. The study has important implications for financial stability in the Islamic banking system.

Keywords: Shari’ah Supervisory Board, Boards of Directors, Islamic banking, financial stability

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Authors: M. Obydul Haque Kamaly

Abstract:

This paper aims to provide a brief discussion on bay al-salam as a method of implementing Islamic Banking in the agricultural arena of Bangladesh. For this purpose, the nature and conditions of bay al-salam contracts will be first discussed. Next, the paper will focus on the comparison between conventional banks and Islamic banks and should answer how bay al-salam can be used as a popular method in agricultural transactions in the country. The paper is based on secondary data which is to describe bay al-salam as future proceedings for Islamic banking. Evidence suggests Islamic banking is very much practiced like modern conventional banking with certain restrictions imposed by Sharia and addresses a large number of business requirements successfully. Thus, it’s time for us to implement Islamic banking (bay al-salam) on our agricultural arena and to get most benefits from them.

Keywords: bay al-salam, agricultural banking, Islamic banking, implementation

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Authors: Erinda Male

Abstract:

Participation of a lawyer in any criminal proceedings on behalf of an accused person or a victim is essential to a fair trial. Legal representation is particularly crucial in proceedings before international tribunals, especially in the International Criminal Court. The paper thus focuses on the importance of the legal representation of victims and defendants before the ICC, as well as on the role of the legal representative in the proceedings before the court and the principle of freedom of choice of legal representatives. Also, the paper presents a short overview of the significance of legal representatives for victims and the necessity to protect their primary role in the ICC system, and ensure that it is coherent and respectful of victims’ rights. Victim participation is an important part of the ICC Statute and it is designed to help ensure that those most affected by the crimes are able to engage with the Court. Proper and quality legal representation ensures meaningful participation of victims at stages of the proceedings before ICC. Finally, the paper acknowledges the role of legal representatives during the pre-trial, trial and post-trial phase, the different modalities in selecting the legal representatives as well as balancing victims’ participation with the right of the accused to a fair trial.

Keywords: fair trial, freedom of choice principle, international criminal court, legal representatives, victims

Procedia PDF Downloads 362