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Islamic Commercial Law: Contemporariness, Normativeness and Competence

Mohamed H. Reda

ISBN13: 9789004344419
Published: November 2017
Publisher: Brill Nijhoff
Country of Publication: The Netherlands
Format: Hardback
Price: £135.00



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Islamic Commercial Law: Contemporariness, Normativeness and Competence offers new perspectives on why for centuries Islamic commercial law has been perceived as arbitrary and unpredictable, and on its evolution to a contemporary, consistent, reliable and credible body of law.

The book also examines why Western positivists have viewed Islamic commercial law in a simplistic or archaic religious framework and counters those arguments with an examination of its normative legal qualities. The work analyses the competencies of Fiqh (jurisprudence) for structuring new financial instruments, and restructuring conventional financial products more equitability.

Subjects:
Islamic Law
Contents:
Acknowledgments
Arabic Terms Glossary
Introduction
1. An Introduction to Islamic Law and Commerce: The Basics
1.1 What is “Islamic Law”? A Definition
1.2 Sources of Islamic Law
1.3 What is Islamic Commercial Law?
1.4 The Growth of the Islamic Commercial Industry in the ModernWorld
1.5 Out with the Old and in with the New: aaoifi and isda Uniform Law Developments
1.6 Law Merchant (“Lex Mercatoria”) as Conventional Uniform Trade Laws
1.7 The unidroit Principles as an Expression of Lex Mercatoria
1.8 The icc’s incoterms as an Expression of Lex Mercatoria
1.9 The Development of the Islamic Uniform Non-state Legal Standards in General and Before Major Reforms
1.10 The Accounting and Auditing Organization for Islamic Financial Institutions
1.11 The Standards vs. the Principles and incoterms
1.12 Further Reasons why the Standards are the Most Reliable and Credible Uniform Laws for the International Islamic Commercial Industry
1.13 The isda Tahawwut Master Agreement 2010
2. Are Islamic Commercial Laws Proper and Normative Laws? Or Simply “primitive” and “religious and moral codes”?
2.1 The Status Quo: Islamic Law in France
2.2 An Unsurprising Perspective: Consistency with Old Case Law
2.3 The Legal Nature of Islamic Law: A Background
2.4 Islamic Law as the Ultimate Normative Source of Laws: State Constitutions, Positive Law and Culture
2.5 Islamic Law’s Normativeness from Its Role in Muslim State Legal Systems
2.6 Islamic Law and Man Made Constitutions: Which is Normative?
2.7 Normativeness of Religious Laws in General
3. Competence by Encompassing
3.1 Maqasid Al Shari’a
3.2 Maqasid al Shari’a: Transcendental and Practical Justice
3.3 The Essential Rules Governing Fiqh al Mu’amalaat Based on Maqasid al Shari’a
3.4 The Distinctive Precepts of Islamic Contract Law: The Prohibition of Riba, Gharar, Maysir
3.5 Is Islamic Law’s Jurisprudence Unrealistic to Implement in Non-Muslim States? Riba, Gharar and Maysir in French Law
3.6 The Precept of the Prohibition of Gharar in French Law
3.7 The Precept of the Prohibition of Maysir in French Law
4. Does Islamic Commercial Law Have the Specific Competence to Govern Modern Complex Commercial and Financial Transactions?
4.1 Islamic Law “is of considerable controversy” and is Not Suitable for Modern Transactions: An Erroneous Perception
4.2 Complex Financial Transactions and Derivatives
4.3 Functions of Derivatives and General Problems
4.4 Aleatory Contracts: A False Sense of Security
4.5 The General Incompatibility of Conventional Derivatives with icl
4.6 Incompatible Conventional Derivatives with icl and Proposed Restructures
4.7 The Unilateral and Bilateral Wa’ad Contract: The Multipurpose Instrument
4.8 Contract Combinations: A Promising Future
4.9 The Progressive Proficiency of Islamic Law
Appendix: Al Azhar Fatwa
Bibliography
Index