While Islamic legal tradition has a long history, commercial law related to the contemporary financial system is at the developing stage compared to the civil and common legal traditions. The paper discusses the adaptability features of Islamic commercial law for contemporary financial settings and puts forward some suggestions to develop the Islamic legal system that can facilitate the growth of Islamic finance.
While civil law can be called the law of the legislators and common law the law of the judges and lawyers, Islamic law can be characterized as the law of scholars. As the scholars consider both the immutable divine sources of law (Shari[ah) along with the human interpretation of these (fiqh), the development of Islamic jurisprudence can be considered a combination of the procedures found in the civil law and common law systems.
The challenge for Islamic law was to create financial contracts from traditional nominate contracts to meet the modern day needs of financial markets and intermediaries. Recent history of the growth of the Islamic financial sector is an indicator of the adaptability of Islamic law to changed situations. Given the principle of permissibility, Islamic commercial law can evolve as long as the limits imposed by Shari[ah are not traversed.
The challenge for Islamic law was to create financial contracts from traditional nominate contracts to meet the modern day needs of financial markets and intermediaries. Recent history of the growth of the Islamic financial sector is an indicator of the adaptability of Islamic law to changed situations. Given the principle of permissibility, Islamic commercial law can evolve as long as the limits imposed by Shari[ah are not traversed.
The adaptability features of source of law and legal justification for Islamic law were closely examined. While contemporary Shari[ah scholars and jurists have done an admirable job of modifying the classical nominate contracts into financial contracts, there still remains a lot of work to be done to make Islamic commercial law relevant to modern day needs. To enable this, there is a need to develop Islamic law, keeping in mind the maqasid al-Shari[ah and the existing technology and environment.
While Islamic law can evolve based on a rich source of body of legal theory and rulings, other elements of the legal infrastructure like laws and statutes, harmonizing the Islamic rules related to financial dealings, and dispute settlement institutions are still weak in many countries. The adaptability features of Islamic law has to be complemented with the strengthening of the legal infrastructure to ensure the development of a comprehensive Islamic financial sector. Given the noble objectives of Islamic law, its evolution can help produce an alternative financial system that can benefit not only Muslims, but humanity at large.
While Islamic law can evolve based on a rich source of body of legal theory and rulings, other elements of the legal infrastructure like laws and statutes, harmonizing the Islamic rules related to financial dealings, and dispute settlement institutions are still weak in many countries. The adaptability features of Islamic law has to be complemented with the strengthening of the legal infrastructure to ensure the development of a comprehensive Islamic financial sector. Given the noble objectives of Islamic law, its evolution can help produce an alternative financial system that can benefit not only Muslims, but humanity at large.
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