Legal and Sharicah Issues in Cross Border Islamic Financial Instruments1

By
Azman Bin Ismail2

Introduction

From Denmark to Dubai and Minnesota to Malaysia, the question of Islam and Islamic law
has been in the front pages of the news and in the back rooms of the courts. With the recent
expansion of Islamic finance and exponential growth of Islamic financial, it is expected that
more cases will come up to the courts, whether these courts reside in the west or in Muslim
countries. In particular, cross border Islamic financial instruments is expected to result in a
greater rate of litigations compared to their local counterparts since the former involve
contending parties in different jurisdictions where sharicah and legal interpretations have a
greater divergence.

The cases of Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd and others1 and of
Tajik Aluminium Plant v Ermatov and others2 in the English courts evidenced the existence
of sharicah and legal issues with regard to Islamic financial instruments. Even when theses
instruments involve parties in a particular jurisdiction, both sharicah and legal issues arise.
The former relates to the interpretation of the sharicah whilst the latter involves the correct
administration of the law.

Sharicah issues

Sharicah issues arise due to the different understanding and interpretation of the sharicah by
jurists. Indeed it is alleged that jurisprudential differences happened even during the time of
the Prophet s.a.w.3 and is a result of his permission to the Companions to use ijtihad to
understand the nusus. For example, in a hadith the Prophet said, “If a judge passes judgment
and makes ijtihad and he is right then he will have two rewards. And if he makes a mistake

1
Presented at the Islamic Banking and Finance Conference, June 2010, organized by the Harun M Hashim Law
Centre, International Islamic University, Kuala Lumpur
2
He represents the International Islamic Finance and Insurance (IIFIN) group
he will have one.”4 What is important, especially in the context of legal decisions by the
courts, is to understand how these differences come about. According to al-Qaradawi,
whoever does not know the rationale of of jurisprudential differences is not knowledgeable
and will not be able to smell the jurisprudence.5 Jurisprudential differences can come about
due to the different methodology employed by the jurists whereby the mutakallimun or
Shafi'iyyun employ the deductive method whilst the fuqaha or Hanafiyyun employ the
inductive method.6 It can also arise due to the understanding of the dalalah itself where at
times, the dalalah may be decisive in transmission but not in meaning. At other times, it may
be decisive in meaning but not in transmission, whilst at other times, the dalalah may neither
be decisive in transmission nor meaning, and that the dalalah that are zhanni in transmission
are not recurrent (mutawatir) in the context of the ahadith, although zhanni dalalah covers
both the Sunnah and the Quran because Arabic words contains several meanings; actual
(haqiqi) and allegorical (majazi) and allegorical (kinayah); specific (khas) and general (am),
absolute (mutlaq) and qualified (muqayyad) and contains dalalah mutabaqah, dalalah
tadamunniyah and dalalah iltizamiyah.7

The issue of jurisprudential differences prompted a court remark that, “most of the classical
Islamic law on financial transactions is not contained as 'rules' or 'law' in the Qur'an and
Sunnah but is based on the often divergent views held by established schools of law formed
in a period roughly between 700 and 850 CE.”8 Although this does not augur well for Muslim
purists, the same court nevertheless noted that, “where it is clear that a particular system of
law governs a dispute before the English court, the court is obliged to apply it, with the
assistance of expert evidence” which should give some relief to Islamic bankers. Certainly,
the application of Islamic law in the English courts can be found as early as 1753 in the
Charter of George II where disputes can be judged according to the competing parties' own
religious laws. The use of expert evidence was formulated in 1772 to implement the charter
where it was required that “mawlanas and pandits to attend the Courts as jurisconsults and
assist the judge in discovering the exact rule applicable”.9 However, this relief will be
meaningless if “expert evidence” itself cannot be determined. This is especially problematic
where the contending parties use experts as in the case of Shamil Bank of Bahrain EC v
Beximco Pharmaceuticals Ltd and others.10 The Bank in question engaged Dr Lau, the former
director of the Centre of Islamic and Middle Eastern Law whilst the defendant engaged
Khalil-Ur-Rehmam Khan J (retired), former chairman of the Sharicah Appellate Bench of the
Supreme Court of Pakistan.11
It is not only the opinions of individuals that may be divergent but this difference may exist
between whole groups of jurists, thus resulting in different fatwas. For example, in the case of
baic al cinah, the International Fiqh Academy for Muslim World League in the 15th session
held in Makkah, 11-15 Rajab, 1419 H.A. resolved that it is forbidden in Islamic law, as it
consists of a trick that leads to usury.12 It was also argued that there is no difference between
the baic al cinah principle and the fixed interest return. Accordingly, it was opposed
vehemently by many jurists13 wherein it was argued that all jurists prohibited it14 and the
hadith narrated by Ibnu Umar was given as evidence. The hadith in question states, “I heard
the Prophet of Allah (S.A.W) say when you enter into the cinah transaction, hold the tails of
oxen, are pleased with agriculture, and give up conducting jihad, Allah will make disgrace
prevail over you, and will not withdraw it until you return to your original religion".
However, those who permitted baic al cinah argued that the hadith is weak.15 Indeed they
brought up two more hadith with respect to the prohibition of baic al cinah. The first hadith is
narrated by Aisha which said, “If you sell and purchase based on cinah, and you cultivate, and
you are satisfied with the cultivation, and you ignore the duty to do jihad, Allah SWT will
curse you and He will not remove the spell until you return to your religion”. The second one
is narrated by Ibn Umar that said, ”If the people count every single dinar and dirham, and sell
and purchase based on cinah, and cultivate the land, and abandon the duty of jihad for the
sake of Allah SWT, Allah SWT will befall misfortune on them, and will not remove it from
them until they return to their religion.”

On the other hand, The Sharicah Advisory Council, Central Bank of Malaysia resolved that
baic al cinah transactions in the Islamic Inter-bank Money Market16 and baic al cinah concept
in credit cards are permissible17 The issue of baic al cinah was revisited in 29th June 2006
and the Council reiterated that although it is permissible in the “context of local Islamic
finance development”, it nevertheless cautioned its use.18

The jurists who permitted baic al cinah argued that the hadith above is weak not only in terms
in terms of its sanad because one of the narrators, al-`Aliah binti Anfa` is unknown
(majhulah) according to Darqutni but the matn as well because Aishah is not in a capacity to
determine status and to invalidate the rewards for jihad that Zaid had involved together with
the Prophet in the battle fields who was of the view that such a sale is permissible.19 Having
said that, it is worthy to note that renowned jurists such as Sheikh Yusuf al-Qaradhawi are of
the view that baic al cinah is prohibited by arguing that it is a clear case of usury and
questioned why should we practice a transaction which contains elements of devices which
deviates from the true objective of sharicah.20

However, while there are similarities between baic al cinah and the fixed interest return there
are differences between baic al cinah and interest compounded based on time. Even in the
case of the fixed return interest, some highly respectable jurists permitted it, notably Ebusuud
Efendi, the Mufti of Istanbul between 1545 and 1574 C.E and the Sheikh-al-Azhar
Muhammad Sayyid Tantawi, who permitted modern forms of interest in 1989 when he was
the Mufti of Egypt and reiterated it in 2002, this time carrying the support of the Azhar
Islamic Research Institute (IRI) (Majmac al-Buhūth al-Islamiyyah)21

Similarly, tawarruq suffers from the same fate as baic al cinah although it is slightly less
controversial due to the presence of a third party. Although it is forbidden or reprehensible in
most schools of Islamic jurisprudence, the minority opinion in the Hanbali school, which is
dominant in the Gulf Cooperation Council (GCC) countries permitted it.22 Furthermore the
Fiqh Council of the Muslim World League in Makkah, Saudi Arabia, issued a fatwa in 1998
permitting it as an alternative to interest-based lending but in 2003 qualified it by permitting
unorganized individual tawarruq but prohibited organized tawarruq as practiced by banks as
it was argued that it was not materially different from interest-based lending but interestingly,
none of the banks that started the practice based on the first fatwa appears to have stopped the
practice based on the second.23 The latter decision that relates to the practice of tawarruq that
are adopted by the financial institutions which is known as al-tawarruq al-munazzam or al-
tawarruq almasrafi and the justification for disallowing such tawarruq is that its modus
operandi resembles baic al cinah; whereby the financial institution who is acting as an agent
to the customer (mustawriq) who need the cash is selling the asset commodity which was
initially purchased from the same institution to the third party. This practice bears
resemblance to the practice of baic al cinah and does not represent the true tawarruq which
has been approved by the classical jurists. Dr Rafik Yunus al-Misri is of the view that the
ruling of tawarruq may vary depending on the following circumstances24:
 1. If all of the three parties involved have known that the main objective of the
customer for entering the tawarruq transaction is to obtain the cash money, then
all of them are sinful.
2. If two of the parties have known that the seller has used the transaction for getting
the cash, both of them are sinful. However, if they do not know the real intention
of the seller, then they are not sinful.
3. A person is allowed to do tawarruq in the case of necessity.

It would be difficult, but not impossible, to resolve sharicah issues in cross-border Islamic
banking and finance because of natural, linguistic, geographical, experiential and other
differences. In this respect, Imam Ibn Qayyim al-Jawzi rightly remarked that “Changes in
fatwa are evaluated by changes in time, places, conditions and customs.”25 The legal maxim,
“Taghayyur al-Ahkam Bi Taghayyur al-Azman (Rulings change with changes in time)” is
also consistent with al-Shafici's qaul qadim and qadim jadid, which represented his ijtihad in
Iraq and Egypt respectively. Ijtihadic differences can also be seen in the case of Imam Abu
Hanifah with his two disciples, the Sahiban.

Although differences of opinion exist, sharicah issues can be solved through the fusion of
usul al-fiqh and maqasid al-sharicah as attempted by al-Shatibi.26 Usul al-fiqh is important
because it is a solid methodology to obtain rules and ensures that a particular ijtihad is based
on the right foundation that guides the jurist in understanding the basis of a specific Sharicah
ruling and the way to extract the hukm from the nusus as a response to various problems.27
Indeed al-Shatibi correctly remarked that “Indeed usul al-fiqh is qatciyyah and not
zhanniyyah”28 while Al-Ghazali concluded that the mujtahid must master the knowledge of
usul al fiqh.29 Indeed al-Ghazali used profound logic in discussing usul al-fiqh for he was of
the opinion that the most noble knowledge is that which integrates both divine texts and
human intellect, whereby usul al-fiqh forms part of it. It is not purely human intellect that is
rejected by divine transmission nor pure taqlid that is not supported by the intellect.30

As for maqasid al-sharicah, al-Raisuni observed that the usuliyyun such as Tarmizi, al-
Maturidi, al-Qaffal, al-Baqillani, al-Imam al-Haramain31 had already discussed it. It was al-
Ghazali who took it to another level by elaborating the khamsah al-dharuriyyah in his book
followed by others.32 Al-Shatibi stressed that the general maqasid al- sharicah be chosen as
the yardstick to determine particular evidences for it is illogical that detailed particulars in the
specific evidences can contradict the general principles inherent in the general objectives.33
Certainly qiyas itself, a legal evidence, depends on knowledge of maqasid al-sharicah.34 The
same goes for maslahah; it must be in line with the maqasid al-sharicah.35 In this respect, Al-
Buti suggested that the principles of maslahah in its framework must not contradict the
Quran, the Sunnah, the Ijmac and a greater or equivalent maslahah.36

Sharicah issues will continue to dominate the cross-border Islamic banking and finance until
enough contemporary jurists and scholars master the two subjects. Currently many fatwas
still use the fiqhi approach rather than streamlining it an with usuli approach that fuses the
maqasid al-sharicah. The reason for this are many and varied but it has to do with our fear of
inadvertently going overboard, thus rendering the fatwas incoherent and impotent. The
support for closing the doors of ijtihad at one moment in time somehow discouraged
distinguished jurists from perform ijtihad for a long time, except for the likes of Ibn
Taimiyyah and his student Ibn al-Qayyim who dared criticise the practice of taqlid. At that
time it was probably necessary under the principle of sadd zaraci but under the current
circumstances our scholars and jurists need to exercise ijtihad, even on a group basis.

Legal Issues

The legal issues are intertwined with sharicah issues for it is partly due to sharicah issues that
legal issues are being debated in and outside the courts as we have seen in the earlier cases.
Even in the case of India, where Islamic law, albeit Islamic law in general, has taken a
central position in the courts, legal issues still crop up from time to time. According to Fyzee,
“the Bombay High Court has had a great influence in the developments of Muhammadan L
aw and its off-shoots” and he gave the Aga Khan Case (1866), Haji Bibi's Case (1908) and
Bayabai v. Bayabai, “where it has been held that since the passing of the Shariat Act, 1937,
the will of a Cutchi Memon should be construed in accordance with the Muhammadan
Law”.37 He remarked that these cases, apart from having great social significance, “from a
purelyl egal point of view” elucidates the mind of the student.38 With regard to which law to
apply, Sec. 27 of the Regulation of 1780 provided that, "That in all suits regarding
inheritance, marriage and caste, and other religious usages or institutions, the laws of the
Koran with respect to the Mahomedans, and those of the Shaster with respect to the Gentoos,
and where only one of the parties shall be a Mahomedan or Gentoo, the laws and usages of
the defendant shall be invariably adhered to." This section is adopted from the Mufassal
Regulation of Warren Hastings, 1772.

The court's decision involving Islamic law may also spark a major controversy as was the
Shah Bano case. The Supreme Court that decided on the issue thought that its decision would
“not involve any question of constitutional importance" but the judgment had “parts of the
Muslim community in India up in arms” and is thought to be equivalent to the upheavel of
1857.39 The issue was whether the courts possess the required competence to interpret the
Quran for in doing so it was argued that it will eventually wipe out Muslim personal law, thus
tantamount to wiping out Islam itself from India. It even led the then Minister of State for
Environment to strongly criticise the judges with the harsh words, "If you have a tamboli
(pan vendor) doing the work of a teli (oil seller) things are bound to go wrong.... They [these
judges] know nothing of the Islamic culture and they are quoting the Koran, the Hadith."40

In the same vein, it was argued that civil courts do not have the capability to ascertain and
determinine what complies with sharicah and what is not for even among sharicah experts
there can differences in matters of interpretation of Islamic law.41 Another court held that the
deciding law is not Islamic law but English law, otherwise the parties would not not have
referred the case to it. The court noted that, "the defendants has not resiled from his
concession that there can only be one governing law of the agreements. He accepts, and
indeed asserts that it was his case below, that the governing law is English law and English
law alone. However, he submits that this does not preclude the possibility that the principles
of Sharia'a have relevance. He submits that all the parties have done is to choose English law
as the governing law but, at the same time, to stipulate as a condition precedent that the
contract is only to be enforceable in so far as it is consistent with the principles of Sharia'a,
which principles amount to legal rules ascertainable and applicable by an English court. He
submits that that is something different from an assertion that Sharia'a law governs the
agreements.” Similarly, it was held that “when dealing with cases involving Islamic
financing facilities, ... the civil court's function ...is to render a judicially considered decision
before it according to law and to examine the application of the Islamic concepts and to
ensure that the transactions in the cases before it do not involve any element not approved in
Islam.”42
Nevertheless, this is not obligatory and such example is in the judgement of a High Court in
Malaysia relating to 11 separate cases involving Bank Islam Malaysia Berhad and Arab
Malaysian Finance Bhd as Plaintiffs which, in an extraordinary decision, reverberates into the
wider issue of validity of Islamic financing transactions which not only will certainly excite
Islamic and civil commercial law juristic debate and comments but introduces an element of
uncertainty into the financial markets.43 Although the Court of Appeal overturned the High
Court ruling confirming the validity of the Al-Bai' Bithaman Ajil Islamic (BBA) contract is
no longer in question in Malaysia, the sharicah interpretations of the Islamic finance tool is
still being debated.44 It should be noted that the learned judge of the High Court rejected a
view that reference be made to the National Sharicah Advisory Council.45

Another judge remarked that, “There is a common notion in Malaysia that it is in the hands of
Islamic jurist and or sharicah advisory board to be the sole arbiter to determine whether a
sharicah financial instrument is sharicah compliant. Such a notion is flawed, and support for
the proposition can be found in Justice Khan's report in Shamil Bank Bahrain v Beximo
Pharmeticals Limited & ors [2003] EWHC 2118 case where it was stated in no uncertain
terms, that in sharicah there is no opinion of any person, body or jurist which binds a court in
deciding a sharicah issue. Further the court is the Supreme Body under the Federal
Constitution to decide what is right and what is wrong in a given circumstances. The Federal
Constitution does not permit the courts to abdicate its role by submitting to decision of lesser
bodies or tribunal such as the instant case to Sharicah Supervisory Board or fatwas or any
purported legislation, rules etc. made thereunder. Having said that, courts will at all times
listen receptively to the views and opinions expressed by these bodies but the final decision
maker under the Federal Constitution is none other than the courts. In essence, whether a
contract or Islamic product, based on murabaha or baic al cinah or mudarabah etc., principle
is valid must be decided by the courts. As long as it does not breach the Qur'anic prohibition
of riba or gharar etc., the courts will have no hesitation in upholding the same. It all depends
on the terms of the contract and not the concept per se, because, the court is concerned with
the terms and not the concept.46

Another legal issue is the possible legal inconsistencies between Islamic financing
mechanisms and the Western approaches, and the possibility of arbitraging the two systems
to one’s advantage in an integrated system will be addressed as it is one of the financial
institutions face in cross-border Islamic financial transactions.47 Furthermore, the western
approach may not uphold the Islamic contracts as evidenced by several cases. For example
in Barclay Commerce Corp. v. Finkelstein (1960) the Appellate Division of the New York
Supreme Court ruled that the heter iska, was “a compliance in form with Hebraic Law”,
which did not create a partnership or intend to create one and ordered the entry of summary
judgment for the lender, dismissal of the counterclaim of the individuals and corporation.48
In Arnav Industries, Inc. Employee Retirement Trust, Plaintiff-Appellant, v. Westside Realty
Associates, et al., Defendants-Respondent, -and- Congregation Kehal Raatzfert a/k/a
Congregation Kehal Ratzfert, et al., Defendants, the court granted the motion of the
plaintiff.49 At issue is whether the insertion of the Hebrew phrase "Al pi heter iska" above the
signature on the mortgage note creates an ambiguity in the instrument so as to warrant denial
of summary judgment for foreclosure and sale. The phrase is translated, "In accordance with
heter iska" or "partnership". According to a rabbi's unsworn statement this refers to a
document called the "shtar iska", executed by the parties to a loan transaction, which creates
a partnership between the borrower and lender in order to avoid a religious prohibition
against the charging of interest. However, the contending parties do not dispute that no shtar
iska was ever executed. Moreover, the mortgage note recites, at clause 16: "Nothing herein or
in the mortgage is intended to create a joint venture, partnership, tenancy-in-common, or joint
tenancy relationship between Borrower and Lender, nor to grant Lender any interest in the
Mortgaged Property other than that of creditor or mortgagee."

Similarly as mentioned earlier, in Islamic Investment Company of the Gulf v. Symphony

Gems NV in 2002, and Beximco Pharmaceuticals v. Shamil Bank of Bahain EC in 2004 the
customers of Islamic banks argued that the markup constituted interest on a loan, and
therefore violated provisions in the contract that it would be governed by Islamic Shari`ah. In
both cases, English courts reasoned that the Shari`ah was not the recognized law of a state,
that different Islamic legal scholars will differ in opinion on various contracts, and therefore
applied English law only, awarding the contested interest charges to the Islamic banks in both
cases.50

Having said that, a big chunk of that law that was administered is not unIslamic but
unfortunately, that is not the perception of the majority of the Muslim ummah and it was
reasoned those who know common law do not know Islamic law and those who know
Islamic law do not know common law.51 It was also foreseen that a future in which in
Malaysia, Islamic law will absorb more and more principles of common law that are not
contradictory to Islamic principles.52

Although the above is true one still needs to address these legal issues as the legal
infrastructure in countries, even in Malaysia, has not matured enough to resolve them. Indeed
a review of all legislation in Muslim countries relating to issues in Islamic banking and
finance will need to be done to ensure consistency in interpretations and judgements.
Certainly legislation relating to the terms “Islam” and “Religion of Islam”, is not specific
enough to provide for which mazhab of Islam is to prevail as in the above case the Al Bai
Bithaman Ajil facilities are offered as Islamic to all Muslims, and not exclusively to
followers of any particular mazhab.53

In non-Muslim countries a special law such as that of the Administration of Muslim Law
Act,54 the Shariat Act 193755 and the Muslim Women (Protection of Rights in Divorce) Act
198656 may be enacted using a particular school of thought in any particular section to reduce
any conflicts in interpretation as it was alleged that the different schools of Islamic thought in
various parts of the globe further complicates the lack of understanding the fast changing
landscape of modern financial markets as well as the intricacies of rules demanded by the
sharicah which is one of the impediments to growth.57

In Malaysia, the discussion on the jurisdiction of the civil courts has now entered a new
phase. Section 56(1) of the Central Bank Act 2009 states that :

Where in any proceedings relating to Islamic financial business before any court or arbitrator any
question arises concerning a sharicah matter, the court or the arbitrator, as the case may be,
shall—
(a) take into consideration any published rulings of the Sharicah Advisory Council; or
(b) refer such question to the Sharicah Advisory Council for its ruling.

Section 57 further states that :

Any ruling made by the Sharicah Advisory Council pursuant to a reference made under this Part
shall be binding on the Islamic financial institutions under section 55 and the court or arbitrator
making a reference under section 56.
 Until there is a decision by the courts, many great legal and otherwise minds in this country
will be occupied with the implications of the Act. It was earlier noted that the court is the
Supreme Body under the Federal Constitution and the latter does not permit the former to
renounce its role by complying with decision of lesser tribunals.

Conclusion

There are several sharicah and legal issues that are inherent in cross-border Islamic banking
and finance but the former can be resolved with human capital development that are
conversant with usul al-fiqh and maqasid al-sharicah whilst the latter will remain to be
problematic for several decades to come.

Wassalam

1
[2003] EWHC 2118 (Comm), [2003] 2 All ER (Comm) 849
2
[2005] EWHC 2241 (Ch), [2005] All ER (D) 250 (Oct), (Approved judgment)
3
al cAlwani, Taha Jabir, The Ethics of Disagreement in Islam, Prepared from the original Arabic by Abdul Wahid Hamid, The
International Institute of Islamic Thought, Herndon, Virginia USA, 35
4
Mutafaq 'alaihi
5
i.e. will not be able to fully understand jurisprudence. See al-Qaradawi, “al-sahwah al-Islamiyyah al-ikhtilaf al-mashruc wa
al-taffaruq al-mazmum dirasah fi fiqh al-ikhtilaf fi dauc al-nusus wa al-maqasid al-sharicah, Qaherah, dar al-Sahwah, 113
6
For a brief but fairly comprehensive treatment of the methodologies see the first part of Ismail, Azman, “Fiqh aulawiyyat in
retakaful : Between RBC standards and islamic financial institutions.” paper presented ath the ISRA islamic Finance Seminar,
2008
7
Quoted in Ismail
8
[2004] EWCA Civ 19, [2004] 4 All ER 1072, [2004] 2 All ER (Comm) 312, [2004] 2 Lloyd's Rep 1
9
Fyzee , Asaf A A, Muhammadan Law in India, Comparative Studies in Society and History, Vol. 5, No. 4 (Jul., 1963),
Cambridge University Press, 412
10
[2003] EWHC 2118 (Comm), [2003] 2 All ER (Comm) 849
11
ibid
12
http://www.isra.my/fatwas/treasury/interbank/tawaruuq/42-rules-of-tawarruq.html accessed 19th April 2010
13
For example see, Rosly, Saiful Azhar and Sanusi, Mahmood , Some Issues of Bay' al-'Inah in Malaysian Islamic Financial
Markets, Arab Law Quarterly, Vol. 16, No. 3 (2001), 276
14
Ibid, 275-278
15
Resolutions of the Securities Commission Sharicah Advisory Council Second Edition, 2007, 22
16
http://www.isra.my/fatwas/commercial-banking/related-matters/others/138-islamic-credit-card-based-on-bai-
inah.html accessed 19th April 2010
17
http://www.isra.my/fatwas/treasury/interbank/murabaha/137-bai-inah-transactions-in-the-money-market.html
accessed 19th April 2010
18
http://www.isra.my/fatwas/commercial-banking/financing/tawarruq/139-revisiting-the-rulings-on-bai-inah.html
accessed 19th April 2010
19
Sharicah Resolutions in Islamic Finance, Bank Negara Malaysia, 66-67
20
Quoted in Rosly and Sanusi, 276
21
El-Gamal, Mahmoud A, “Interest” and the Paradox of Contemporary Islamic Law and Finance, 3
22
El-Gamal, Mahmoud A, Incoherence of Contract-Based Islamic Financial Jurisprudence in the Age of Financial
Engineering, Rice University, May 2007, 12
23
ibid
24
Sharicah Resolutions in Islamic finance, Bank Negara Malaysia, 2006
25
al-Jawzi , Ibn al-Qayyim, Iclam al-Muwaqicin Rabb al-alamin, dar al-Fikr, n.d., 3 : 4
26
Soualhi, Yunus. Maqasid al-Sharicah and Its Realisation in Contemporary Societies, International Islamic University
Malaysia, Vol 3, 2006, 61
27
Al-Zuhaili, Wahbah, Usul al-Fiqh al-Islami, Beirut, Dar al-Fikr, 2000
28
Al-Shatibi. Muwafaqat fi usul al-shari'ah. Bayrut: Dar al-Kutub al-'Ilmiyah, 2005
29
Al-Ghazali, al-Mustasfa min ‘ilm al-usul, Barrut: Dar Sadir, 171
Ibid, 33
30
31
Al-Raisuni, Ahmad. Nazariyah al-maqasid 'inda al-Imam al-Shatibi. Riyad: Al-Dar al-'Alamiyah li'l-Kitab al-Islami, 1995,
39-71
32
See Ismail, Azman, Fiqh Aulawiyyat
33
Al-Shatibi, 3:8
34
Al-Ghazali, 251
35
Al-Shatibi, 2:129
36
Buti, Sacid Ramadhan, Dhawabit al-Maslahah al-Sharicah al-Islamiyyah, Beirut, 2000
37
Fyzee, 411
38
ibid
39
Mody, Nawaz B, The Press in India: The Shah Bano Judgment and Its Aftermath , Asian Survey, Vol. 27, No. 8 (Aug.,
1987), 935
40
Ibid, 941
41
[2003] EWHC 2118 (Comm), [2003] 2 All ER (Comm) 849
42
[2009] MLJU 0055
43
The Edge Malaysia, January 19, 2009
44
The Edge Malaysia, April 6, 2009
45
The Edge Malaysia, January 19, 2009
46
[2009] MLJU 0055
47
Islamic Financial Structures as Alternatives to International Loan Agreements: Challenges for American Financial
Institutions, Babback Sabahi, Boston University School of Law, bepress Legal Series, Year 2004 Paper 385, The Berkeley
Electronic Press, 3
48
1960 N.Y. App. Div. LEXIS 7904
49
1992 N.Y. App. Div. LEXIS 1421
50
El-Gamal, Mahmoud A, Incoherence of Contract-Based Islamic Financial Jurisprudence in the Age of Financial
Engineering, Rice University, May 2007, 2-3
51
The fourth Abd al-Razzaq al-Sanhuri Lecture on Legal Interpretation in the Middle East was delivered on November 11,
2008, by the former Chief Justice of Malaysia Tun Abdul Hamid Mohamad (retired from office in October 2008). As
his subject he chose “Harmonization of Common Law and Shari‘ah in Malaysia: A Practical Approach., The Newsletter Of
The Islamic Legal Studies Program At Harvard Law School Volume 14, Numbers 1 and 2, June 2009, 7
52
ibid
53
Page 52 of the judgement
54
Administration of Muslim Law Act, Singapore
55
Muhammadan Law in India Author(s): Asaf A. A. Fyzee Source: Comparative Studies in Society and History, Vol. 5, No. 4
(Jul., 1963), pp. 401-415 Published by: Cambridge University Press , 414
56
"Shahbano" Author(s): Zakia Pathak and Rajeswari Sunder Rajan Source: Signs, Vol. 14, No. 3 (Spring, 1989), pp. 558-582
Published by: The University of Chicago Press, 558
57
Emerging Islamic CAPITAL MARKETS - a quickening pace and new potential by Zamir Iqbal and Hiroshi Tsubota, The
World Bank, nd, 6