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Bin Ellias, Muhd Ramadhan Fitri (2020) The Significance of ʿUrf and its Influence in the Development of Sharīʿah Standards of Islamic Finance in Malaysia. PhD thesis. SOAS University of London. DOI: https://doi.org/10.25501/SOAS.00035356

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Abstract

Since the classical era of Islamic jurisprudence, recourse to prevalent ʿurf (custom) has been very effective in helping jurists to resolve various substantive issues, particularly pertaining to commercial activities. Despite its significance, ʿurf receives only informal recognition by early jurists, and modern jurists are still in dispute as to whether ʿurf can be formally recognised as a legal source. This study therefore aims to survey juristic discourse surrounding the critical importance of ʿurf within the rubric of Islamic legal theory and the synthesis of Islamic law. Further, the study aims to examine the degree of influence posed by ʿurf in the development of the Sharīʿah Standards, regulatory documents recently published by Bank Negara Malaysia (BNM), which have the force of law under Malaysia’s Islamic Financial Services Act (IFSA 2013). This qualitative study relies primarily on an investigation of the literature to uncover the significance of ʿurf and the recent developments of the Islamic finance industry in Malaysia, particularly in matters related to the issuance of the Standards. In addition, detailed information on the development process of the Standards has been gathered through a series of interviews with parties who were involved in their formulation. The study proposes that ʿurf possesses requisite significance to be recognised as a formal source of Islamic law. Furthermore, the study exhibits the influence of ʿurf in the development of the Standards, which can be seen at a macro level (in the overarching principles of the Standards) and at a micro level (in the prescriptions of Sharīʿah contracts). At the macro level, the ʿurf of modern banking has influenced BNM to adopt the “financing model” as an underlying framework for the Standards. It is also concluded that ʿurf influences the prescriptions of contracts in multiple ways but most prominently in sanctioning new conditions of contracts.

Item Type: Theses (PhD)
SOAS Departments & Centres: SOAS Research Theses
Supervisors Name: Muhammad Abdel-Haleem
DOI (Digital Object Identifier): https://doi.org/10.25501/SOAS.00035356
Date Deposited: 21 Jul 2021 13:05
URI: https://eprints.soas.ac.uk/id/eprint/35356

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