Papers by Hamid Harasani
3 Global Journal of Comparative Law (2014) 186-202, 2014
Increasingly, Islamic law has become the subject of comparative legal study. Further, in the appl... more Increasingly, Islamic law has become the subject of comparative legal study. Further, in the applied sense, comparative legal studies’ greatest value lies in understanding our own legal systems, as well as benefiting from other legal systems by importing what we lack from them. Unlike secular legal systems, Islamic law, being religious in nature and having eschatological connotations, requires reworking the comparative legal method to take account of that. When it comes to religious laws, hermeneutics play a key role, as a religious legal system will only be receptive to foreign norms if such norms earn their place internally, following hermeneutic justification. Cultural and religious pride, as well as intellectual impartiality, decrees that a legal solution should not be preferable just because it comes from the First World. This paper will therefore formulate a methodology for comparative legal studies where religious law is one of the comparative models and there are potential suggestions of legal transplant.
Islamic Finance News 11(20), May 21, 2014
On the 13th March this year, the UK Law Society published a practice note explaining Shariah succ... more On the 13th March this year, the UK Law Society published a practice note explaining Shariah succession rules to solicitors who have Muslim clients that require Shariah compliant wills. The publication of the note has led to a media frenzy directed at Islamic law, with some journalists portraying the new Law Society publication as a threat to the English legal system as a whole, and warning that this could represent the beginning of the creation of a dual legal system in the UK. HAMID HARASANI asks whether that fear is justified — are Shariah compliant wills really such a threat?
8 The Journal of Comparative Law 172-191, Dec 2013
Legal conflicts cause tensions between Islamic law and the common law. One such conflict exists b... more Legal conflicts cause tensions between Islamic law and the common law. One such conflict exists between the rule against perpetuities in trusts and mandatory perpetuities in family Waqfs. This conflict is a prime example of a direct clash of legal philosophies. To appreciate the full extent of this conflict, this article analyses three seminal cases from colonial times, a period in which English common law judges had the opportunity to adjudicate on Islamic legal matters in colonial dominions where Islamic law prevailed. The cases will help gauge how receptive the common law is to Islamic legal doctrines that clash with it.
This article explores the ban on usury under Islamic law, and assesses whether the ban is one of ... more This article explores the ban on usury under Islamic law, and assesses whether the ban is one of substance or form. Further, it also presents an objective test that will determine whether certain financial transactions—that aim to circumvent the ban on usury—are merely ḥiyal (legal ruses). The discussion of these issues is not a plain theoretical exercise; this type of work is necessary for financial institutions that aim to create innovative Islamic-compliant schemes without overstepping the boundaries of Islamic law.
US-China Law Review, Aug 2013
While new and complicated legal issues continuously come to the fore, Islamic sacred texts that d... more While new and complicated legal issues continuously come to the fore, Islamic sacred texts that deal with legal issues are finite. Ijtihad is an interpretive tool that applies legal reasoning based on sacred texts to derive new legal rules that meet emerging legal problems. This paper will elucidate the nature of Ijtihad and comment on the status of Ijtihad today. The paper will also explain why it is necessary to replace macro-Ijtihad with micro-Ijtihad, and will highlight the importance of the continuance of Ijtihad by Islamic jurists despite Islamic law’s reduced application.
Islamic Finance News 10(16) p.15, Apr 2013
As the Islamic finance industry penetrates ever further into the global financial market, Islamic... more As the Islamic finance industry penetrates ever further into the global financial market, Islamic jurists and national regulators alike have a responsibility to encourage a positive reconciliation between Islamic and conventional structures that will allow Islamic finance schemes to develop uninhibited by legal obstacles. HAMID HARASANI evaluates the current situation.
Islamic Finance News 9(42) pp. 20-21, Oct 2012
Although the provisions of testate succession in Islamic law are relatively straightforward, the ... more Although the provisions of testate succession in Islamic law are relatively straightforward, the provisions of Islamic intestate successions are detailed and can be complicated. Unlike other laws, which may allow a testator to opt out, Islamic intestacy laws will always take e ect, regardless of there being a will or not. This is because Islamic law restricts a testator in both the amount of his or her estate that can be distributed, and the nature of benefi ciaries that he or she can transfer wealth to by virtue of a will.
Islamic Finance News 9(12) pp.39-40, Mar 2012
Providing the current growth pa ern is maintained, the global Takaful market is projected to hit ... more Providing the current growth pa ern is maintained, the global Takaful market is projected to hit the US$25 billion mark soon. However, over-concentration in certain business lines as well as the increasing number of players entering the Takaful market has resulted in less profi tability for Takaful operators when compared to conventional insurance operators.
Conference Presentations by Hamid Harasani
Increasingly, Islamic law has become the subject of comparative legal study. Further, in the appl... more Increasingly, Islamic law has become the subject of comparative legal study. Further, in the applied sense, comparative legal studies’ greatest value lies in understanding our own legal systems, as well as benefiting from other legal systems by importing what we lack from them. Unlike secular legal systems, Islamic law, being religious in nature and having eschatological connotations, requires reworking the comparative legal method to take account of that. When it comes to religious laws, hermeneutics play a key role, as a religious legal system will only be receptive to foreign norms if such norms earn their place internally, following hermeneutic justification. Cultural and religious pride, as well as intellectual impartiality, imparts that a legal solution should not be preferable by the very virtue of it coming from the First World. This paper will therefore formulate a methodology for comparative legal studies, where religious law is one of the comparative models, and where there are potential suggestions of legal transplant.
The recent decision in Khaira v Shergill re-visits the position of judges in determining question... more The recent decision in Khaira v Shergill re-visits the position of judges in determining questions of religious doctrine and practice. In the context of civil rights, the case defines the limit of non intervention in religious doctrine and practice. The case also advances policy reasons for the non-justiciability of religious doctrine and practice. In addition, and in dicta, the case also suggests that the doctrine of incorporation could be used to transform religious doctrine, which is usually a no-go area for judges, into contractual or trust provisions that judges will more readily construct and adjudicate upon. But the question remains whether it is possible to distinguish between rules of law and rules of religious doctrine where the religion in question is also recognised as a body of law in itself. The paper argues that while the court advanced a test for determining when religious doctrine and practice is non-justiciable, the case does not define religious doctrine and practice meaning that the position of religious laws, such Islamic or Judaic law, remains unclear. By analysing historic decisions, the paper will highlight the importance of conclusively clarifying the English courts’ stance on interpreting or adjudicating upon questions of religious law.
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Papers by Hamid Harasani
Conference Presentations by Hamid Harasani