Contents
Acknowledgments VII
Arabic Terms Glossary VIII
Introduction 1
1
An Introduction to Islamic Law and Commerce: The Basics 8
1.1
What is “Islamic Law”? A Definition 8
1.2
Sources of Islamic Law 10
1.3
What is Islamic Commercial Law? 12
1.4
The Growth of the Islamic Commercial Industry in the Modern World 15
1.5
Out with the Old and in with the New: aaoifi and isda Uniform Law Developments 22
1.6
Law Merchant (“Lex Mercatoria”) as Conventional Uniform Trade Laws 22
1.7
The unidroit Principles as an Expression of Lex Mercatoria 29
1.8
The icc’s incoterms as an Expression of Lex Mercatoria 36
1.9
The Development of the Islamic Uniform Non-state Legal Standards in General and Before Major Reforms 39
1.10
The Accounting and Auditing Organization for Islamic Financial Institutions 43
1.11
The Standards vs. the Principles and incoterms 45
1.12
Further Reasons why the Standards are the Most Reliable and Credible Uniform Laws for the International Islamic Commercial Industry 51
1.13
The isda Tahawwut Master Agreement 2010 57
2
Are Islamic Commercial Laws Proper and Normative Laws? Or Simply “primitive” and “religious and moral codes”? 61
2.1
The Status Quo: Islamic Law in France 61
2.2
An Unsurprising Perspective: Consistency with Old Case Law 62
2.3
The Legal Nature of Islamic Law: A Background 63
2.4
Islamic Law as the Ultimate Normative Source of Laws: State Constitutions, Positive Law and Culture 68
2.5
Islamic Law’s Normativeness from Its Role in Muslim State Legal Systems 73
2.6
Islamic Law and Man Made Constitutions: Which is Normative? 78
2.7
Normativeness of Religious Laws in General 83
3
Competence by Encompassing 87
3.1
Maqasid Al Shari’a 88
3.2
Maqasid al Shari’a: Transcendental and Practical Justice 92
3.3
The Essential Rules Governing Fiqh al Mu’amalaat Based on Maqasid al Shari’a 95
3.5
Is Islamic Law’s Jurisprudence Unrealistic to Implement in Non-Muslim States? Riba, Gharar and Maysir in French Law 115
3.6
The Precept of the Prohibition of Gharar in French Law 121
4
Does Islamic Commercial Law Have the Specific Competence to Govern Modern Complex Commercial and Financial Transactions? 130
4.1
Islamic Law “is of considerable controversy” and is Not Suitable for Modern Transactions: An Erroneous Perception 130
4.2
Complex Financial Transactions and Derivatives 133
4.3
Functions of Derivatives and General Problems 134
4.4
Aleatory Contracts: A False Sense of Security 135
4.5
The General Incompatibility of Conventional Derivatives with icl 137
4.6
Incompatible Conventional Derivatives with icl and Proposed Restructures 138
4.7
The Unilateral and Bilateral Wa’ad Contract: The Multipurpose Instrument 154
4.8
Contract Combinations: A Promising Future 156
4.9
The Progressive Proficiency of Islamic Law 158
Appendix: Al Azhar Fatwa 171
Bibliography 180
Index 206