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The present thesis has been designed to discuss how the minimum age for marriage has been determined in Islamic Fiqh with a focus on the case study of the Family Law No 36 of 2010 in Jordan. It is the contention of the present researcher that the marriage of minors cannot comply with the guidance of both the Holy Quran and Hadith because neither specified a clear cut minimum age for marriage. A considerable confusion exists among Muslim scholars regarding the determination of the minimum age for marriage leading to the prevalence of child marriage in some Muslim societies. This confusion has arisen when Muslim scholars have sought to derive the minimum age for marriage from de – contextualised verses of the Holy Quran and texts of the Hadith that refer to the physical and natural symptoms of puberty and encourage both young men and women to marry at an early age. In order to fully examine such a problematic issue, identify the root causes lying behind it and, hopefully make a contribution towards solving it, the present study has sought to jurisprudentially contextualise such an issue within the Islamic Fiqh. The researcher has argued that determining the appropriate age for marriage based on the original context of pertinent verses of the Holy Quran and texts of the Hadith as well as the international criteria for human rights is the sole legal guarantee that safeguards the right of women to express their full and free consent to marriage.

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This study deals with an important concept in fiqh known as ḍamān. Despite its universal usage in various areas of law, including that of criminal law and law of torts especially in facilitating award of compensation, this study will confine its survey within the bounds of commercial transactions. Ḍamān forms one of the most complicated subject-matters in the Islamic Law of Obligation. In this context, ḍamān is generally perceived as civil liability in the widest meaning, arising from the non-performance of contractual obligation, violation of trust, misrepresentation and unlawful enrichment. Firstly, this study will discuss suretyship, as ḍamān is, to some extent, treated as synonymous with kafālah by the jurists. Secondly, ḍamān will be surveyed as a method of redress of any contractual irregularities under the notion of gharāmah. Such practices are motivated by the Sharī'ah doctrines of maqāṣid shar'iyyah (objectives of the law), upholding the concept of lā ḍarara wa lā ḍirār (no harm shall be inflicted or reciprocated) and respecting the notion of sanctity of legitimate ownership (ḥurmat al-milkiyyah) and freedom of contract (ḥurriyat al-ta'āqud). Methods of establishing liability (ṭuruq ithbāt al-ḍamān) and its waivers (al-i'fā') min al-ḍamān), provision of redress (mabda' al-ta'wīḍ) and the institutional framework which are involved in it are then discussed. The study will be concerned with the prescriptions of the Qur'ān and Sunnah on ḍamān and their explanations in the classical manuals of Islamic Law. In addition, certain post-classical texts offering specific treatment of ḍamān, particularly al-Baghdādī's Majma' al-Ḍamānāt and al-Ma'danī's Taḍmln al-Ṣunnā' will be studied. Also, decisions by juristconsults of various localities, recorded in various collections of fatāwā and court decisions in the literature of adab al-qaḍā, will be examined to enhance our knowledge of the way ḍamān has been treated. For the purpose of systemization, texts of Uṣūl al-Fiqh and Qawā'id Fiqhiyyah are essential. Similarly, evidence on the economic history of Muslim civilization in the form of actual contracts, letters, business records and institutional operations, are examined. The research also relies heavily on the codifications of Islamic law like the Ottoman Majallat al-Aḥkām al-'Adliyyah, Qadrī Bāshā's Murshid al-Ḥayrān and the Ḥanbalīs Majallat al-Aḥkām al-Shar'iyyah. Finally, an analysis of the contemporary legislations in Egypt, the United Arab Emirates and Malaysia will prove that a classical concept like ḍamān is still vital for modem commerce. This also lays stress on the importance of neo-ijtihād to ensure ability and competence to apply ḍamān to fresh problems in commercial life.

This thesis argues that the Islamic finance industry has its ideological foundations in the business ethics and stakeholder theory since the Islamic jurisprudence supports the ethical foundation of business and financial intermediations. These ethical practices can be traced back to jurisprudential concepts of Maqasid Al Sharia and Maslaha in Islamic law. The current practices of IFI however fails to follow the ethically sound (and in line with the Maqasid and Maslaha ideals) stakeholder model because of competitive pressures from the conventional financial industry and is thus modelled more on the Neo liberal shareholder profit maximisation ideology, focusing mainly on ensuring that the shareholders and certain investments account holders get maximum returns, thereby foregoing the interest of other stakeholders. It is thus argued that due to the incompatibility of the Neo liberal ethos with the Islamic finance ideals (the Maqasid of Financial intermediation), the Islamic finance industry needs to focus on more stakeholder oriented practices. The major reason for the failure of the current regulatory framework for the Islamic finance industry is the lack of any compliance and enforcement mechanism to ensure that uniform sharia governance mechanisms can be applied across the jurisdictions. This it is argued can best be achieved by international principle based Meta regulatory framework focusing on the stakeholder nature of the Islamic finance involving the IFSB and the AAOIFI and giving these bodies the authority to issue certificates of sharia compliance whereby the IFI’s would be required to obtain these certificates to function as ‘Islamic’ institutions.

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