This book considers legal aspects of Islamic finance within the context of a
securitisation transaction; and the viability of an Islamic finance securitisation
within the context of global finance. The ‘principle-centric’ approach
adopted emphasises enquiry into the principles that govern Islamic law of
contract and finance and de-emphasise adherence to the current rules. It
suggests that whilst the principles remain constant (the general framework),
the rules may change and are not ‘carved in stone’.
In recognition of the equitable and social aspect of the law – at the
root of its legal and judicial aspect – this book undertakes more than just
presenting a synthesis of literature on legal aspects of Islamic finance and
their comparable equivalent under the common law. It stresses the need
for fresh interpretation of the principles examined herein and their contextual
application. It goes further to re-examine from fresh angles the textual
sources on gharar, riba and bay al dayn (sale of debt/receivables) which are
central to Islamic commercial and financial law. In this sense, the book
is not merely descriptive, but also prescriptive as to how a certain rule or
concept ought to be applied to serve social welfare and economic progress.
Available literature and publications do not provide much detail on what
Islamic finance really is beyond the hype, jargon and statistics. What makes
it substantially different from conventional modes of finance? And what is
currently missing, generally or in certain jurisdictions, the presence of which
would ensure the sustainability of its development both in product array
and market confidence? Therein lies the key to the development of Islamic
finance structures and products and this book has suggested answers, albeit
non-conclusive, to these questions.