Islamic Law of Business Organisation: Partnerships

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About the Book   The recent decades have witnessed a strong assertion of Islamic identity. One of its manifestations is the insistence on the part of Muslims that all institutions of life should be brought in conformity with Islamic principles. This necessitates exploring Islamic principles relevant to such institutions as well as developing clear ideas as to how those principles would be applied in the changed circumstances of the prese...

About the Book

 

The recent decades have witnessed a strong assertion of Islamic identity. One of its manifestations is the insistence on the part of Muslims that all institutions of life should be brought in conformity with Islamic principles. This necessitates exploring Islamic principles relevant to such institutions as well as developing clear ideas as to how those principles would be applied in the changed circumstances of the present age. Imran Ahsan Nyazee has addressed himself to these very questions in the present work and has attempted to spell out the Islamic principles on which business enterprise should be based specially in the area of partnership. In this exercise he displays a strikingly acute awareness of Islamic laws on the subject. This, however, is matches by an equally striking awareness of the forms of business organization in vogue in the contemporary world. What is perhaps no less striking is the author's robust confidence in Islamic law and its distinct approach to the problems of life, including business and finance. He feels unhappy with those Muslims who, instead taking up the challenge to build institutions of business and finance in the light of Islamic principles, resort to the less strenuous task of uncritically appropriating Western institutions. Nyazee is convinced that the Islamic legal principles at variance with the contemporary laws and practices in business and finance are instrinsically sound and are preferable to Their counterparts prevailing in the present times. The work primarily represents a serious Scholarly effort to sort out complicated Questions such as those mentioned above, to enunciate Islamic principles relative to business enterprise, and to apply them In the changed context of present - day business

 

Foreword

 

Islamic law, which is rooted in the Qur'an and the Sunnah of the Prophet (peace be on him), has a chequered history of over fourteen centuries. During this long period the principles embodied in these two sources were elaborated and their legal implications were worked out by some of the finest and most pious minds. Muslim jurists carefully considered the different aspects of Islamic legal theory in great depth. Likewise, the detailed legal prescriptions were examined with great thoroughness. The laws so developed were applied in a variety of Muslim societies which, during all but a few past centuries, were among the most advanced in the world. Thus the legal heritage of Islam is characterized both by legal finese and diversity in addition to its having matured after being tried and tested over a long period of practical application.

 

During the nineteenth and twentieth centuries, however, leadership in most fields of life passed on from the world of Islam to the West. New sources of energy and power were tapped and exploited by Westerners with the result that they eventually acquired almost universal dominance and their institutions became models for all, including the Muslims. This is true of the institutions of business and finance as well. However, like other institutions in the West, these were also developed-consistent with the dominant secularist spirit and orientation of the times-in total disregard of heavenly guidance, a fact which poses some problems for Muslims. For they hold, as a matter of religious belief, that Islam is valid for all times and that it provides the most judicious guidance for different aspects of life. It would follow from these premises that the economic institutions inspired by Islamic principles (1) should be as viable in the present times as they were before, and (2) should be more conducive to human good than the institutions developed in disregard of the principles derived from heavenly guidance.

 

The recent decades have witnessed a strong assertion of Islamic identity. One of its manifestations is the insistence on the part of Muslims that all institutions of life-be they political, economic or whatever-should be brought in conformity with Islamic principles. This necessitates exploring Islamic principles relevant to the institutions concerned as well as developing clear ideas as to how those principles would be applied in the changed circumstances of the present age.

 

Imran Ahsan N yazee has addressed himself to these very questions in the present work and has attempted to spell out the Islamic principles on which business enterprise should be based specially in the area of partnership. In this exercise Nyazee displays a strikingly acute awareness of Islamic laws on the subject. This, however, is matched by an equally striking awareness of the forms of business organization in vogue in the contemporary world. What is perhaps no less strikingly the author's robust confidence in Islamic law and its distinct approach to the problems of life, including business and finance. Nyazee feels no need to apologize for the fact that Islamic legal prescriptions come into conflict with some of the business institutions and practices of the present times. In fact he feels unhappy with those Muslims who, instead of taking up the challenge to build institutions of business and finance in the light of Islamic principles, resort to the less strenuous task of uncritically appropriating Western institutions. Such persons tend to gloss over the fact that some of those institutions might be incongruous with Islamic principles, or explain away by adopting an easygoing attitude to Islamic law. Nyazee is convinced that the Islamic legal principles which are at variance with the contemporary laws and practices in business and finance are intrinsically sound and are preferable to their counter- parts prevailing in the present times. The work primarily represents a serious scholarly effort to sort complicated questions such as those mentioned above, to enunciate Islamic principles relative to business enterprise, and to apply these principles in the changed context of present-day business.

 

We have had the privilege of publishing Nyazee's previous work- which was also his maiden work- Theories of Islamic Law: The Methodology of Ijtihad (Islamabad: 1994). That work was devoted to illuminating the theoretical bases of Islamic law. It was characterized by a boldness of approach emanating from the author's strong conviction in the intrinsic value of Islamic law apart from his re- doubtable breadth of knowledge. We hope that the readers will find the present work equally characterized by those very attributes.

 

Contents

 

 

Foreword

ix

1

Introduction

1

I

The Nature of Partnership in Fiqh and Law

11

2

Definition of Partnership in Fiqh and Law

13

3

The Formation of a Sharikah

25

4

Types of Partnership

35

5

Fundamental Concepts I: The Firm and its Different Notions

51

6

Fundamental Concepts II: Contracts Underlying Partnerships

57

7

Fundamental Concepts III: The Boses for Entitlement to Profit

69

8

Fundamental Concepts IV: Ownership of the Capital of the Firm

77

9

Fundamental Concepts V: Liability of Partners for Debts

81

II

The Firts Category of Partnerships in Fiqh: Hanafit School

95

10

Hanafit School: General Conditions of ‘Inan

99

11

Hanafit School: Special Conditions of ‘Inan

125

12

Hanafit School: The Mufawadah Partnership

159

III

The First Category of Partnerships in Fiqh: Majority Schools

177

13

Maliki School: First Category of Partnerships

181

14

Shafi’i School: First Category of Partnerships

203

15

Hanbali School: First Category of Partnerships

215

16

Comparison Between the Schools

231

IV

The Second Category of Partnerships in Fiqh

239

17

Mudarabah or Qirad

243

18

Muzara’ah and Musaqah

 

V

Islamic Form of Partnerships for the Modern World

293

19

Basic Issues in Corporate Law and Finance for Islamic Law

297

20

Partnerships Without Legal Personality: Existing Law

303

21

Partnerships With Legal Personality: New Poposals

315

22

Select Biliography

325

23

Glossary

331

24

Index

343

 

Sample Pages

















Item Code: NAJ619 Author: Imran Ahsan Khan Nyazee Cover: Paperback Edition: 2006 Publisher: Kitab Bhavan ISBN: 8171512623 Language: English Size: 9.5 inch x 6.0 inch Pages: 360 Other Details: Weight of the Book: 500 gms
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