Use this URL to cite or link to this record in EThOS: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.528562
Title: Legal stratagems (hiyal) and usury in Islamic commercial law
Author: Ismail, Muhammed Imran
Awarding Body: University of Birmingham
Current Institution: University of Birmingham
Date of Award: 2010
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Abstract:
This thesis investigates the subject of legal stratagems \((hiyal)\) in Islamic jurisprudence, in general and more particularly the \(hiyal\) used to evade the usury \((ribā) \)prohibition. The context of this thesis is the nascent Islamic finance industry in which these \(hiyal\) play a leading role. The \(hiyal\) have been appropriated from the classical Islamic legal corpus without appreciating their historical contextual framework. This thesis seeks to explicate that framework and clarify the purpose and role of those \(hiyal\) as envisaged in the discourse of the classical Islamic jurists. The \(hiyal\) are shown to be premised upon a teleology which demarcates them as normative exits, \(makhārij\). The \(makhārij\) are conditioned by the systematic reasoning of the Ḥanafī jurists, which both justifies their utility and circumscribes their juridical remit. The \(hiyal\) of \(ribā\) are demonstrated to have been utilised primarily as substitutes for philanthropy, and not in the commercial sector. The commercial sector relied on the Islamic prescriptions for equity investment partnerships which precluded the need for interest based loans. Although the jurists sanctioned the \(hiyal\) of \(ribā\) for the poor, they did so at the expense of systematic consistency. This means that these \(hiyal\), as opposed to the \(makhārij\), are not regarded as normative exits, but rather, as transitory concessions. The use of these \(hiyal\) as financial norms is therefore unwarranted. The substantive repercussions of this juridical reassessment were demonstrated using the historical experience of the Ottomans, where the long term use of the \(hiyal\) of \(ribā\) resulted in the negative socio-economic conditions generally associated with usurious economies.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID: uk.bl.ethos.528562  DOI: Not available
Keywords: HF Commerce ; BP Islam. Bahaism. Theosophy, etc
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