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Article
Publication date: 12 November 2020

Zakariya Mustapha, Sherin Binti Kunhibava and Aishath Muneeza

The purpose of this paper is to review the literature on Islamic finance vis-à-vis legal and Sharīʿah non-compliance risks in its transactions and judicial dispute…

Abstract

Purpose

The purpose of this paper is to review the literature on Islamic finance vis-à-vis legal and Sharīʿah non-compliance risks in its transactions and judicial dispute resolution in Nigeria. This is with a view to putting forward direction for future studies on the duo of legal and Sharīʿah non-compliance risks and their impact in Islamic finance.

Design/methodology/approach

This review is designed as an exploratory study and qualitative methodology is used in examining relevant literature comprising of primary and secondary data while identifying legal risk and Sharīʿah non-compliance risks of Nigeria’s Islamic finance industry. Using the doctrinal approach together with content analysis, relevant Nigerian laws and judicial precedents applicable to Islamic finance practice and related publications were examined in determining the identified risks.

Findings

Undeveloped laws, the uncertainty of Sharīʿah governance and enforceability issues are identified as legal gaps for Islamic finance under the Nigerian legal system. The gaps are inimical to and undermine investor confidence in Nigeria’s Islamic finance industry. The review reveals the necessity of tailor-made Sharīʿah-based regulations in addition to corresponding governance and oversight for a legally safe and Sharīʿah-compliant Islamic finance practice. It brings to light the imperative for mitigating the legal and Sharīʿah non-compliance risks associated with Islamic finance operations as crucial for Islamic finance businesses, Islamic finance institutions and their sustainable development.

Research limitations/implications

Based on content analysis, the review is wholly doctrinal and does not involve empirical data. Legal safety and Sharīʿah compliance are not to be compromised in Islamic finance operations. The review would assist relevant regulators and investors in Islamic financial enterprises to understand and determine the impact and potential ramifications of legal safety and Sharīʿah non-compliance on Islamic Finance Institutions.

Practical implications

This study provides an insight into the dimensions and ramifications of legal and Sharīʿah non-compliance risks of Nigeria’s Islamic finance industry. This study is premised on the imperative for research studies whose outcome would inform regulations that strike a balance between establishing Islamic financial institution/business and ensuring legal certainty and Sharīʿah compliance of their operations. This study paves way for this kind of research studies.

Originality/value

The findings and discussions provide a guide for regulators and researchers on the identification and mitigation of legal and Sharīʿah non-compliance risks in Islamic finance via a literature review. This study, the first of its kind in Nigeria, advances the idea that research into legal and Sharīʿah non-compliance risks of Islamic financial entities is key to mitigating the risks and fostering the entities and their businesses.

Details

International Journal of Law and Management, vol. 63 no. 2
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 3 July 2017

Robert Michael Axelrod

This paper aims to suggest alternative suspicious activity analyses to improve the focus of financial institution reporting to law enforcement and to identify some…

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Abstract

Purpose

This paper aims to suggest alternative suspicious activity analyses to improve the focus of financial institution reporting to law enforcement and to identify some limitations in the current practice.

Design/methodology/approach

This paper employs the consideration of US and Financial Action Task Force policies and text sources of suspicious activity reporting in the anti-money laundering context in light of how the reports are used. Furthermore, there is consideration of confidentiality and privacy constraints on public and private sector in assessing strategies to make the reporting process more effective and aiding the discovery and investigation of crime.

Findings

The current suspicious activity reporting process takes advantage of the business acumen of financial institutions to identify unusual or unexplained behavior that may assist law enforcement in criminal investigations and prosecutions. It is successful in that regard. However, the process has not been tuned to identifying criminal behavior through systematic feedback. As an alternative to feedback, analysis of criminal organizations vis-à-vis the transactions that flow through a reporting institution is suggested as a means to creating better tuning. The analysis could be accomplished either by law enforcement or by select institutions; but in either case, hurdles of confidentiality and/or privacy would have to be overcome.

Originality/value

Creating a process for law enforcement and/or reporting institutions to map known criminal activity on a transaction set would allow a new assessment of the role of financial institutions in this regard, and may allow policymakers to reassess whether the financial institutions’ efforts currently required would be more productive if redirected to focus more on criminal as opposed to merely suspicious activity.

Details

Journal of Financial Crime, vol. 24 no. 3
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 10 May 2011

Robert J. Dijkstra and Michael G. Faure

The purpose of this paper is to understand the incentive effects of existing compensation mechanisms in case of the bankruptcy of a financial institution.

Abstract

Purpose

The purpose of this paper is to understand the incentive effects of existing compensation mechanisms in case of the bankruptcy of a financial institution.

Design/methodology/approach

The paper uses insights of law and economics to predict the effects of compensation mechanisms on the incentives of depositors, financial institutions, financial regulators and government.

Findings

The paper shows that the current compensation system in The Netherlands will not provide sufficient incentives for all stakeholders to prevent the failure of a financial institution. Adjustments to this system are necessary to improve these incentives.

Original/value

The paper examines for the first time the impact of different compensation mechanisms on the incentives of multiple stakeholders. It also shows how these mechanisms influence each other regarding their incentive generating capability. These findings offer important insights for policy makers.

Details

Journal of Financial Regulation and Compliance, vol. 19 no. 2
Type: Research Article
ISSN: 1358-1988

Keywords

Book part
Publication date: 30 June 2017

Elizabeth Chiarello

The United States has an uncomfortable relationship with pleasure. Cultural ambivalence is evident in discourses surrounding pleasure and the labeling and treatment of…

Abstract

The United States has an uncomfortable relationship with pleasure. Cultural ambivalence is evident in discourses surrounding pleasure and the labeling and treatment of those who act on their desires. Pleasure seeking, generally understood in moral terms, is often medicalized and criminalized (as in the case of pregnancy prevention and drug use), placing questions of how to manage pleasure under the purview of medical and legal actors. At the macrolevel, institutions police pleasure via rules, patterns of action, and logics, while at the microlevel, frontline workers police pleasure via daily decisions about resource distribution. This chapter develops a sociolegal framework for understanding the social control of pleasure by analyzing how two institutions – medicine and criminal justice – police pleasure institutionally and interactionally. Conceptualizing medicine and criminal justice as paternalistic institutions acting as arbiters of morality, I demonstrate how these institutions address two cases of pleasure seeking – drug use and sex – by drawing examples from contemporary drug and reproductive health policy. Section one highlights shared institutional mechanisms of policing pleasure across medicine and criminal justice such as categorization, allocation of professional power, and the structuring of legitimate consequences for pleasure seeking. Section two demonstrates how frontline workers in each field act as moral gatekeepers as they interpret and construct institutional imperatives while exercising discretion about resource allocation in daily practice. The chapter concludes with a discussion of how understanding institutional and interactional policing of pleasure informs sociolegal scholarship about the relationships between medicine and criminal justice and the mechanisms by which institutions and frontline workers act as agents of social control.

Details

Studies in Law, Politics, and Society
Type: Book
ISBN: 978-1-78714-811-6

Keywords

Book part
Publication date: 10 June 2019

Amira Aftab

Western liberal states are considered to be secular in nature, with a presumed neutrality of state laws from religious values and norms. However, this claim overlooks the…

Abstract

Western liberal states are considered to be secular in nature, with a presumed neutrality of state laws from religious values and norms. However, this claim overlooks the inherent influence that religious groups (namely, dominant Christian churches and groups) have as informal institutions. According to neo-institutionalists, informal institutions, like these religious norms and values, interact with and influence formal state institutions. As such, it could be argued that the norms and values of dominant religious groups within the state have a role in shaping governmental policies and the law. This is evident when examining the debates around multiculturalism and religious freedom that arise in liberal democratic states such as Australia, Canada, and the United Kingdom (UK). In particular, the recent Sharia debates that have arisen in each of these jurisdictions illustrate that the secular state legal system is often positioned as “neutral” and free from religious influence – and thus incompatible with, and unable to, accommodate the religious orders of minority groups. However, this idea that the state is entirely free from religious values is a fallacy that ignores the historical role and influence of Christian churches in each state. In opposing the accommodation of Sharia in private dispute resolution, common arguments include the inherent patriarchal nature of the religion leading to further oppression and disadvantage of Muslim women when seeking resolution of personal law matters (i.e. divorce and property settlements). The secular state law is positioned against this (and religion more broadly) as the “fair” and “just” alternative for minority women – protector of individual rights. Though this ignores the inherent gender hierarchies embedded within formal state institutions, including the legal system that has been implicitly shaped by religious moral values to varying degrees – where minority women are also faced with a set of gender biases. When combined with the internal pressures from their communities and families this can often place them in a double-bind of disadvantage. In this paper, I draw on feminist institutionalism to examine the informal institutional norms that arise from dominant Christian churches in Australia, Canada, and the UK. In particular, the ways in which these informal norms have influenced the development of state laws, and continue to operate alongside the legal system to shape and influence governmental policies, laws, and ultimately the outcomes for Muslim women.

Details

Studies in Law, Politics, and Society
Type: Book
ISBN: 978-1-78973-727-1

Keywords

Article
Publication date: 3 January 2017

Ghalib Khan, Rubina Bhatti, Amjid Khan and Rahim Jan

The purpose of this study is to suggest strategic-based measures for improving the current situation of academic law libraries in Khyber Pakhtunkhwa, Pakistan.

Abstract

Purpose

The purpose of this study is to suggest strategic-based measures for improving the current situation of academic law libraries in Khyber Pakhtunkhwa, Pakistan.

Design/methodology/approach

Using a survey method, this study attempted to explore a strategic-based measure for improving academic law libraries in Khyber Pakhtunkhwa. Data were collected from 43 respondents through semi-structured interviews, including library and information science professionals, academicians and administrative officers of the affiliation awarding institutions and principals of the law colleges.

Findings

Based on the interview findings, the study found that most of the law colleges do not pay attention towards the development of their institutional libraries. Outdated collections, scarcity of information and communication technologies and budgetary issues, inactive roles of regulating bodies and professional associations, limited roles of professional library staff, limited access to the Higher Education Commission digital library, absence of proper library setup and moral obligations and responsibilities of institutional administrations towards the development of academic law libraries were the main challenges.

Research limitations/implications

The scope of this paper covers Constituent Law College of the University of Peshawar and its 18 affiliated law colleges (Total 19), and the geographical area is restricted to the province of Khyber Pakhtunkhwa. The scope of this paper can be extended to additional private and public sector universities in Pakistan, as well as abroad.

Originality/value

This study is the first of its kind in Pakistan which will help the stockholders of affiliated and affiliation granting institutions to improve the current situation of academic law libraries in the province of Khyber Pakhtunkhwa. The study presents a number of suggestions for the improvement of academic law libraries, which may be of value to the local institutions and developing countries with similar situations.

Details

Collection Building, vol. 36 no. 1
Type: Research Article
ISSN: 0160-4953

Keywords

Article
Publication date: 11 October 2011

Anna Simonova

The purpose of this paper, which is a part of a PhD thesis, is to detect problems associated with the risk‐based approach to anti‐money laundering (AML), as well as…

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Abstract

Purpose

The purpose of this paper, which is a part of a PhD thesis, is to detect problems associated with the risk‐based approach to anti‐money laundering (AML), as well as present ways to improve the risk‐based approach.

Design/methodology/approach

The method is law and economics. The PhD thesis itself is also based on a comparative analysis of the Danish and British AML regimes.

Findings

The main findings are: failure to develop adequate risk‐based AML systems, taking into account varying levels of money laundering risk, is not only to be considered in the context of legal risk but also and more importantly in the context of integrity risk; anti‐money laundering (AML) has to be made part of financial and non‐financial institutions' corporate social responsibility policies; the Risk Analysis Manual provided by the Central Bank of The Netherlands lists very specific and comprehensive assessment criteria for a broad range of risks facing financial institutions. This manual could be considered by international bodies and individual financial institutions in informing their risk control; due to their intelligence access, cross‐national agreements of cooperation and exchange of information and contacts to multiple stakeholders, financial intelligence units are better placed in educating financial institutions on AML matters by means of regular typology publications and other guidance based on SARs and other intelligence; and AML considerations should be incorporated in other areas of law, such as immigration law concerning wealthy individuals, if the AML regime is to achieve its intended impact.

Originality/value

The paper highlights how the AML regime in general and the risk‐based approach in particular could be improved so as to meet concerns of both regulatory authorities and regulated entities.

Article
Publication date: 1 March 1992

John Conway O'Brien

A collection of essays by a social economist seeking to balanceeconomics as a science of means with the values deemed necessary toman′s finding the good life and society…

Abstract

A collection of essays by a social economist seeking to balance economics as a science of means with the values deemed necessary to man′s finding the good life and society enduring as a civilized instrumentality. Looks for authority to great men of the past and to today′s moral philosopher: man is an ethical animal. The 13 essays are: 1. Evolutionary Economics: The End of It All? which challenges the view that Darwinism destroyed belief in a universe of purpose and design; 2. Schmoller′s Political Economy: Its Psychic, Moral and Legal Foundations, which centres on the belief that time‐honoured ethical values prevail in an economy formed by ties of common sentiment, ideas, customs and laws; 3. Adam Smith by Gustav von Schmoller – Schmoller rejects Smith′s natural law and sees him as simply spreading the message of Calvinism; 4. Pierre‐Joseph Proudhon, Socialist – Karl Marx, Communist: A Comparison; 5. Marxism and the Instauration of Man, which raises the question for Marx: is the flowering of the new man in Communist society the ultimate end to the dialectical movement of history?; 6. Ethical Progress and Economic Growth in Western Civilization; 7. Ethical Principles in American Society: An Appraisal; 8. The Ugent Need for a Consensus on Moral Values, which focuses on the real dangers inherent in there being no consensus on moral values; 9. Human Resources and the Good Society – man is not to be treated as an economic resource; man′s moral and material wellbeing is the goal; 10. The Social Economist on the Modern Dilemma: Ethical Dwarfs and Nuclear Giants, which argues that it is imperative to distinguish good from evil and to act accordingly: existentialism, situation ethics and evolutionary ethics savour of nihilism; 11. Ethical Principles: The Economist′s Quandary, which is the difficulty of balancing the claims of disinterested science and of the urge to better the human condition; 12. The Role of Government in the Advancement of Cultural Values, which discusses censorship and the funding of art against the background of the US Helms Amendment; 13. Man at the Crossroads draws earlier themes together; the author makes the case for rejecting determinism and the “operant conditioning” of the Skinner school in favour of the moral progress of autonomous man through adherence to traditional ethical values.

Details

International Journal of Social Economics, vol. 19 no. 3/4/5
Type: Research Article
ISSN: 0306-8293

Keywords

Article
Publication date: 1 May 1997

Anghel N. Rugina

The equation of unified knowledge says that S = f (A,P) which means that the practical solution to a given problem is a function of the existing, empirical, actual…

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Abstract

The equation of unified knowledge says that S = f (A,P) which means that the practical solution to a given problem is a function of the existing, empirical, actual realities and the future, potential, best possible conditions of general stable equilibrium which both pure and practical reason, exhaustive in the Kantian sense, show as being within the realm of potential realities beyond any doubt. The first classical revolution in economic thinking, included in factor “P” of the equation, conceived the economic and financial problems in terms of a model of ideal conditions of stable equilibrium but neglected the full consideration of the existing, actual conditions. That is the main reason why, in the end, it failed. The second modern revolution, included in factor “A” of the equation, conceived the economic and financial problems in terms of the existing, actual conditions, usually in disequilibrium or unstable equilibrium (in case of stagnation) and neglected the sense of right direction expressed in factor “P” or the realization of general, stable equilibrium. That is the main reason why the modern revolution failed in the past and is failing in front of our eyes in the present. The equation of unified knowledge, perceived as a sui generis synthesis between classical and modern thinking has been applied rigorously and systematically in writing the enclosed American‐British economic, monetary, financial and social stabilization plans. In the final analysis, a new economic philosophy, based on a synthesis between classical and modern thinking, called here the new economics of unified knowledge, is applied to solve the malaise of the twentieth century which resulted from a confusion between thinking in terms of stable equilibrium on the one hand and disequilibrium or unstable equilibrium on the other.

Details

International Journal of Social Economics, vol. 24 no. 5
Type: Research Article
ISSN: 0306-8293

Keywords

Book part
Publication date: 29 February 2008

Guyora Binder

Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying…

Abstract

Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law's representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ornamental, to legal justification.

Details

Special Issue Law and Literature Reconsidered
Type: Book
ISBN: 978-1-84950-561-1

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