Creating Laws for Economic Growth in a Hybrid Islamic Legal System

64 Pages Posted: 20 Sep 2018

See all articles by Maliheh Zare

Maliheh Zare

New York University School of Law

Date Written: August 31, 2018

Abstract

Modern hybrid Islamic legal systems that maintained Islamic law (IL) as a source of law while adopting a civil or common law legal system face a constant challenge: safeguarding compatibility of their laws with IL and adapting them to modern realities. In response, some states in Muslim countries with aspirations for economic growth secularize their legal systems in order to modernize it. However, such states should preserve compatibility of their laws with IL. Recent developments in the “legal transplants” theory show that if the original process of transplantation enables the transplanted laws to assimilate the local characteristics, then the laws will be more conducive to economic growth. This phenomenon occurs because individuals will be more likely to comply with these laws and will also be more likely to ask lawyers and courts to enforce and develop newly-introduced laws more efficiently. IL possesses the capacity to accommodate reforms; jurists have been aware of this need and have developed methodologies to welcome change. Additionally, “reasonable” interpretations of rules and legal process compliance with IL would make it possible for a state to stay Islamic while ensuring adaptability of its laws with modernity. In the process, consistency of laws, as introduced by Weberian theory of systematic lawmaking and common law precedent-based system, should be guaranteed: consistency in a pluralistic legal system makes it calculable for different actors. A prerequisite is to resolve the conflicts through adoption of an efficient and accountable conflict resolution system. This system must function timely and produce fair outcomes, accommodating the society’s diversity and changes in religiosity.

Keywords: Legal transplants, economic growth, Islamic law, Weber, conflict, hybrid Islamic legal systems, mixed legal systems, comparative law, law and development

JEL Classification: P48, O17, N15, E02

Suggested Citation

Zare, Maliheh, Creating Laws for Economic Growth in a Hybrid Islamic Legal System (August 31, 2018). Southern California Interdisciplinary Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3246444

Maliheh Zare (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States

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