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The overview of Islamic commercial law
Sayokhat AKHROROVA
1
Tashkent State University of Law
ARTICLE INFO
ABSTRACT
Article history:
Received July 2023
Received in revised form
15 July 2023
Accepted 25 July 2023
Available online
15 August 2023
‘Islamic law’ covers all aspects of human behavior. It is much
wider than the Western understanding of ‘law’, and governs ‘the
Muslim’s way of life in literally every detail and, of course, it
also regulates commercial transactions. It follows that the
Islamic conceptual framework is quite unlike that of
Christianity in which law is secular. There is no Christian law of
contract, for example, no Christian law of property, whereas
bodies of law dealing with such matters do exist in the shari’a –
the ‘legal’ v
erses of the Koran and the traditions of the Prophet.
The shari’a has long been abandoned and substituted by
Western law. However, as a result of the Islamic revival, the
possibility of adapting the shari’a to the modern world has been
considered recently.
2181-
1415/©
2023 in Science LLC.
DOI:
https://doi.org/10.47689/2181-1415-vol4-iss6/S-pp394-399
This is an open access article under the Attribution 4.0 International
(CC BY 4.0) license (https://creativecommons.org/licenses/by/4.0/deed.ru)
Keywords:
Islam,
Koran,
shari’a,
fiqh,
sunna,
akhlaq,
mu’amalat,
ijma,
qiyas
Islom tijorat huquqini sharhlash
ANNOTATSIYA
Kalit so‘zlar
:
Islom,
Qur'on,
shariat,
fiqh,
sunnat,
axloq,
muamalat,
ijmo,
qiyos.
“Islom huquqi” inson xulq
-atvorining barcha jabhalarini
qamrab oladi. Bu
gʻarbning “qonun” tushunchasidan ancha
kengroq boʻlib, “musulmonning turmush tarzini tom maʼnoda
har bir detalda tartibga soladi va, albatta, tijorat
operatsiyalarini tartibga soladi”. Bundan kelib chiqadiki, islom
konseptual tuzilishi qonun dunyoviy bo'lgan xristianlikdan
tubdan farq qiladi. Masalan, nasroniylik shartnoma qonuni,
nasroniy mulk huquqi yo
‘
q, shariatda esa bunday masalalarga
oid qonun kodekslari
–
Qur
’
onning
“
qonuniy
”
oyatlari va
Payg
‘
ambar urf-odatlari mavjud. Shariat uzoq vaqtdan beri tark
etilgan va o
‘
rniga G
‘
arb qonunlari kiritilgan. Biroq islom
uyg‘onishi natijasida so‘nggi paytlarda shariatni zamonaviy
dunyoga moslashtirish imkoniyatlari ko‘rib chiqila boshlandi.
1
Lecturer, Business Law Department Tashkent State University of Law. E-mail: sayohatahrorova@gmail.com.
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395
Обзор исламского коммерческого права
АННОТАЦИЯ
Ключевые слова:
Ислам,
Коран,
шариат,
фикх,
сунна,
ахлак,
муамалат,
иджма,
кийас.
«Исламский
закон»
охватывает
все
аспекты
человеческого поведения. Оно гораздо шире западного
понимания «закона» и регулирует «образ жизни
мусульманина буквально во всех деталях и, конечно же,
регулирует и коммерческие сделки». Из этого следует, что
исламская
концептуальная
структура
совершенно
отличается от христианской, в которой закон является
светским. Например, нет христианского договорного права,
нет христианского права собственности, тогда как своды
законов, касающихся таких вопросов, существуют в
шариате –
«юридических» стихах Корана и традициях
Пророка. Шариат уже давно отброшен и заменен западным
правом. Однако в результате исламского возрождения в
последнее время
стала рассматриваться возможность
адаптации шариата к современному миру.
INTRODUCTION
The numerous tragic events, such as the terrorist attacks on the Twin Towers in New
York, Bali, Madrid and London, the invasions of Afghanistan and Iraq, the ongoing violence in
those two countries and the attack on Lebanon, have created an interest in Islam generally,
and more particularly in the phenomenon known as the ‘Islamic revival’. One result of this
new interest is an awareness of the role and importance of law
in the life of Muslims. ‘Islamic
law’ (in inverted commas because, as explained below, the term itself is problematic) covers
all aspects of human behavior. It is much wider than the Western understanding of ‘law’, and
governs ‘the Muslim’s way of life in
literally every detail, from political government to the
sale of real property, from hunting to the etiquette of dining, from sexual relations to
worship and prayer.’
[1]. Notably for our purposes it also regulates commercial transactions.
It follows that the Islamic conceptual framework is quite unlike that of Christianity in which
law is secular [2]. There is no Christian law of contract, for example, no Christian law of
property, whereas bodies of law dealing with such matters do exist in the shari’a. S
o,
although it would make no sense to refer to ‘Christian commercial law’, it is meaningful to
speak of ‘Islamic Commercial Law’.
Various issues need to be explored before we proceed to a consideration of that law.
The Background
‘Islamic Law’, Shari’a and Fiqh As already indicated, the expression ‘Islamic law’
necessitates some discussion. It is not a translation from Arabic: it cannot even be
meaningfully translated into that language, which in fact uses two words, ‘shari’a’ and
‘fiqh’. In one sense of the word (and it must be said that usages vary and opinions differ),
the shari’a is constituted by the ‘legal’ verses of the Koran and the Traditions of the
Prophet, fiqh is the learned study and juristic interpretation of those sources; it is often
described as ‘Islamic jurisprudence’. In a broader sense, the word shari’a also includes
such interpretation [3]. The concepts are normally regarded as distinct, although
naturally, the boundaries between them are not absolutely clear-cut. Muslim scholars
rightly criticize the term ‘Islamic law’ for its failure to distinguish between the two
phenomena. In this article, therefore, the term will be avoided from now on. The shari’a
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must be clearly differentiated from the state law of Muslim-majority jurisdictions. Some
jurisdictions do have a provision in their constitution that the shari’a is a or the principal
source of law [4]
, and some have enacted statutes based on the shari’a. However, this is
different from the shari’a being the law.
In the first case, it is no more than the source; in
the second, one of its essential attributes, its ultimate authority, has been altered, from
Allah to the state. The one exception is Saudi Arabia, where the shari’a is the law, but
even there it is supplem
ented by numerous ‘regulations’ enacted by the government.
Shari’a Commercial Law
‘Commercial law’ is an imprecise term.
In comparisons between Western systems,
the primary linguistic difference is that the common law term tends to cover transactions
rather than institutions such as partnerships and companies, whereas civilian law
equivalents encompass both [5]. Another striking difference, which cannot be
categorized according to the common law/civilian law divide, is that between systems
that have a formal distinction between commercial and non-commercial law and those
which do not
*
.
The considerations do not apply to the shari’a. The distinction between
transactions and institutions is not relevant because, although the shari’a does hav
e
contracts that resemble our partnerships, it has practically no concept of legal
personality
*
. As regards the distinction between commercial and non-commercial law,
the jurists did, naturally, categorize the shari’a, but the principal divisions were akh
laq
(morals), ibada (religious observance) and mu’amalat (transactions) and, although they
did recognize the difference between commercial and non-commercial transactions to
some extent, this acknowledgment did not have anything like the same nature or
significance as the Western divide.
In the shari’a, the same principles of morality apply to
all situations; one should not behave in one way at home and another way in the office.
The shari’a attitude has deep roots, for it reflects the Prophet’s many years
of experience
as a trader before his prophetic mission. This uniformity of treatment is a particularly
important aspect of the subject because it gives rise to some major differences between
the shari’a and Western commercial law regimes. The latter, wheth
er or not they contain
a formal distinction, work on the assumption that different attitudes are needed for
commercial as opposed to non-commercial transactions since business people need less
protection than ordinary individuals and different moral standards apply. Accordingly,
any definition of ‘Shari’a commercial law’ (one might be: ‘all those parts of the shari’a
relating to the exchange of goods and services with the aim of profit’), must be read in the
light of the considerations outlined above.
The S
hari’a:
Development and Eclipse But what is the shari’a? The question is perhaps best
answered by a brief historical overview. The Prophet Muhammad received his first divine
message in approximately 610 AD, having up to that date been a highly respected
merchant and arbitrator. The message was followed by other revelations, which were
gathered together after his death in the collection now known as the Koran, literally
‘reader’, from the root ‘qr’’, to read. The Koran contains a considerable number of vers
es
*
Italy, for example, does not have a formal distinction. United States jurisdictions do not fit into this categorisation, as
they have statutes based on the Uniform Commercial Code, but do not make a formal distinction in the same way as,
say, French law.
*
There were a few instances of phenomena which were similar to legal entity ideas, but they were not developed or
used to any significant extent.
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with legal significance but is far from being a comprehensive code. It is supplemented by
accounts of the Prophet’s words and deeds, his practice or ‘sunna’, recorded in short
narratives called ‘hadith’, the English translation of which is ‘Tradition’.
Even this
combination, though, does not provide enough detail to deal with all commonly occurring
problems, so the jurists devised rules to fill the gaps using various techniques, notably
qiyas (analogy) and ijma’ (consensus; at first that of the whole com
munity, then that of
the jurists). Various other concepts were of relevance, of these ‘urf (custom) was of great
significance in commercial transactions. One concept in particular, ‘ijtihad’, should be
mentioned here.
Literally ‘effort’, in a legal sense can be defined as ‘independent
judgment in a legal or theological question, based on the interpretation and application of
the [sources of the shari’a], as opposed to taqlid [following established rules and
doctrine]’
[6].
In other words, it is a human activity that interprets the will of Allah as manifested
in the Koran and the Sunna by the use of established juristic techniques. That activity can
only be properly undertaken by someone with a deep knowledge of the shari’a, someone
who is ‘mujtahid’. It is also used to denote creativity in the shari’a, as in the (now
somewhat discredited) idea of the ‘closing of the gate of ijtihad’, and more especially in
recent times, the adaptation of the shari’a to modern conditions.
The law which emerged
was ‘the law of the div politic’
[7], but it was to a significant extent devised, and almost
entirely managed and interpreted, by jurists working within madhahib (singular
madhhab, rendered in English as ‘school’).
The madhahib were largely independent of
the ruler who was, in principle and usually in practice, subject to the law, not its
generator or controller.
‘Never could the Islamic ruling elite, the div politic, determine
what the law was.’
[8].
Indeed, the div politic was regarded as corrupt. ‘If Islamic law
had represented to Muslims the best of religion and religious life, then the state stood for
the worst of worldly temptation [and] corruption’. Naturally, interaction and
accommodation did occur between the jurists and the ruler, but nonetheless, the
indep
endent and dominant position of the shari’a does constitute a major difference
between it and the modern Western idea of law. On the commercial side, the Muslim
conquests created a vast area in which and out of which a great deal of trading activity
took place. It was crossed by important trade routes and, for most of the very long period
of classical Islam, there was a favorable economic environment.
‘Industry was developed,
manpower consisted of free workers, many goods were produced for export and large
quantities of coins were in circulation.’
[9]. Gold from Western Sudan came into the
Muslim world and circulated freely and there was: ‘intense [banking] activity’, in which
bankers: ‘performed all banking operations: the exchange of money, loans, and the
sale of
assignments of credit’.
As a consequence, the jurists developed a system which, it seems,
(although, as we shall see, the issue is disputed) served the needs of participants well.
However, the Muslim world was eventually overtaken by the West in areas such as
technology, warfare, and commercial techniques. This new superiority was forcefully
brought home by a long series of events, including notably the conquest of Egypt by the
French in 1798, the European domination of trade (symbolized for many commentators
by the Treaty of Balta Liman in 1838 between the United Kingdom and the Ottoman
Empire) [10] and generally the political domination of the region by European powers.
One of the consequences was a wish to ‘modernize’, in other words, to imitate a
nd adopt
those ideas and institutions which seemed to have given Europe the advantage.
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The modernization movement led to the shari’a being ‘abandoned with astonishing speed
and completeness’ in all areas except family law; shari’a commercial law disappear
ed
from almost the entire region, the one exception being, for a considerable period, the
Arabian peninsula and, more recently, Saudi Arabia alone, and Western commercial law
was adopted in its place.
The full history of the adoption, involving notably the separation of commercial
law from other legal topics, has yet to be written. In particular, commentators still argue
about ‘why the reformers looked to Europe rather than build on pre
-
existing shari’a
traditions’, but it seems that Napoleon brought with h
im to Egypt, by way of an
unthinking assumption, the French idea of separating commercial and non-commercial
law, and that special courts were set up to deal with commercial disputes [11]. The
influential adoption by the Ottoman Empire in 1850 of large parts of the French
Commercial Code was made as part of a long and complex secularization process in
which the following factors, inter alia, seem to have played a part:
1. European dominance of trade;
2. The desire of European merchants to avoid local courts and local law;
3.
The perception that an obligation to use the shari’a disadvantaged local
merchants against their European counterparts, who could use Western law, which was
viewed as more efficient;
4. The practice of European traders of using the French Commercial Code as a kind
of customary law to aid the resolution of their disputes;
5. Familiarity with the idea and practice of secular legislation in certain fields;
6. The influence of the Ottoman elite, who stood to gain from trade with Europe,
and the governmental desire to please them;
7. A perception that commercial matters were of less religious significance than,
say akhlaq (morals), a perception which may have been influenced by the Egyptian
experience.
However, this may be, what is certain is that major parts of the French Commercial
Code 1807 were imported as the Ottoman Commercial Code 1850. Subsequent
developments in state law followed the pattern of a divide between commercial and non-
commercial matters, this format was the progenitor of the basic attitude towards
commercial law, and its un-Islamic separation from civil law seen in the legal systems of
many other countries such as Egypt, Iraq, Libya and Kuwait. In drafting the civil codes of
these countries, the approach of the noted Egyptian jurist, Dr Abd al-Razzaq alSanhuri,
even in his second, more ‘Islamic revival’, phase of drafting ‘was premised on the view
that Shari’ah cannot be reintroduced in its totality’.
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BEDIR, M (2004), ‘Fikh to Law: Secularization through Curriculum’, (11) Islamic
Law and Society 379, p 380.
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