The new legalities of Islamic contractual interpretation: institutional frameworks and the displacement of intention

Jonathan G. Ercanbrack and Ali Ali

International Journal of Islamic and Middle Eastern Finance and Management, 2024, vol. 17, issue 6, 1196-1212

Abstract: Purpose - This study aims to examine the extent to which traditional juristic approaches to determining intention in Islamic law are altered in the institutional framework and standard-setting project of the Malaysian state. Design/methodology/approach - The study used the transnational law theory, which views normativity as culturally, socially and religiously embedded. The development of norms, customs and laws is also contingent on self-maximizing behavior. The Sharīʿa Advisory Council’s interpretation of the bayʿ al-ʿīnah standard is a case study of this approach to the development of law. Findings - This study shows that traditional approaches to determining the validity of an Islamic contract have been displaced by the institutional logic of the state, which prioritizes uniformity and certainty in law and reflects liberal, Western and capitalistic values. Islamic standard setting is part of the state’s objective to uniformize law due to the globalization of financial markets. The normative collisions in the standard-setting project produce a new jurisprudence based on the state’s uniform and purposive determination of a contract’s validity. Research limitations/implications - Further research on institutional frameworks is needed to conceptualize how Islamic commercial principles and ethics can be incentivized in the state’s legal systems. Originality/value - Few works, if any, have examined the interaction of the state’s institutional environment with jurists’ traditional approaches to determining contractual intention. Most scholarship assumes the decisive role of market forces, but the role of law and institutions in this context is under-researched.

Keywords: Intention; Institutions; Islamic contract law; Contractual interpretation; Law and economics; Malaysian common law; Standardization (search for similar items in EconPapers)
Date: 2024
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Persistent link: https://EconPapers.repec.org/RePEc:eme:imefmp:imefm-03-2024-0156

DOI: 10.1108/IMEFM-03-2024-0156

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