Shari'ah and Common Law: The Challenge of Harmonisation (de Gruyter Studies in Global Asia)

Harmonisation of law, a term that refers to the bringing together of two different legal traditions, has developed a negative connotation when considered in the context of Shari’ah and common law. Harmonisation began to be looked at as an attempt by one legal system to impose its values on the other. A major reason for that is the lack of understanding of the scope to which these two legal traditions converge. One of the principal findings of this book is that Shari’ah and common law have many more commonalities than differences. As a result, the need for harmonisation between the two might have been exaggerated. The similarities do not need to be harmonised. Rather, they need to be acknowledged and appreciated. If the differences between Shari’ah and common law, which undoubtedly exist as evidenced in this book, are viewed with an appreciation of the commonalities, the ambiance to reconcile the differences would be more conducive to the harmonisation process. This book is intended to help readers better understand Shari’ah and common law and aid harmonisation efforts when the need arises. Integrates policy implications for governments and organizations in complex and diverse societies. Focuses on the interface between research and practice. Provides guidance on how to engage complex, deep-seated legacies of protracted conflicts. Foreword 5 Preface 7 Contents 9 1 Harmonisation of Shari’ah and Common Law: An Overview 11 2 Harmonisation of Contract Law: How Far Have We Gone – and Where Are We Going? 21 3 Islamic Banking, Islamic Capital Market, and Takaful: The Shari’ah and Common Law Harmonisation Analysis 43 4 Shari’ah-Compliant Financing for Energy Projects: A Call for Standardisation of Islamic Finance Contracts 73 5 Insubordination in Employment Law: The Common Law and Shari’ah Perspective 87 6 Tabung Haji: A Missed Opportunity to Display Good Corporate Governance of an Islamic Institution? 101 7 Defamation from Common Law and Shari’ah Perspective: The Convergence and Divergence 121 8 “Trust” and “Self-Accountability” in the Protection of Privacy: Responding to the Rise of International Data Protection Standards in Muslim Countries 139 9 Enhancing Environmental Sustainability Through the Harmonisation of Common Law and Shari’ah 161 10 Selected Issues in Family Law: Towards the Harmonisation Between Shari’ah and Common Law 183 11 Harmonising Criminal Justice System 205 12 Human Rights and the Rule of Law: The Common Law and Shari’ah Perspective 217 13 Alternative Dispute Resolution: The Conventional and Shari’ah Perspective 235 14 Muslims in the US and State Involvement in Religion 249 15 Harmonisation of Shari’ah and Common Law: Findings and Recommendations 269 Notes on Contributors 289