High-net-worth Muslim investors are increasingly investing and accruing wealth in the United Kingdom and the demand for Shariah-compliant wealth-planning structures, such as Waqfs, is growing. This study accepts that Waqf law, as applied today, has its shortcomings and that it must be reformed. Further, as the study focuses on the United Kingdom (specifically on common law as applied in England and Wales), the apparent incongruence of Waqfs and trusts is acknowledged and highlighted by this study’s analysis of three seminal British colonial cases that treated private Waqfs. The two main differences between Waqfs and trusts are their respective stances on perpetuities and ownership. While Islamic law, as understood by most not all jurists, mandates perpetuity for Waqfs, English law has a rule against perpetuities. Also, conventionally, while the trustee is seen as the legal owner of an English trust’s property, most Islamic jurists maintain that no one owns Waqf property; it is deemed to be owned by God. Using a combination of the comparative legal method and hermeneutics, this thesis reconciles Islamic law with English trust’s law in these two main areas. The study does not find it necessary for one legal system to reign supreme over the other, as such solutions will be questioned by the internal subjects of the dominated legal system, undermining the efficacy of this study. Rather, reconciliation is a mutual step to congruence taken by both legal systems. In the area of perpetuities, the thesis finds that neither Islamic Waqfs must be perpetual, nor common law trusts must have a rule against perpetuities. Regarding ownership theories, the multiplicity of rendered theories in both legal systems presents more than one avenue of reconciliation. Overall, the study finds that private Waqfs and private trusts can be reconciled without undermining the internal hermeneutic standpoints of both legal systems.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:705922 |
| Date | January 2014 |
| Creators | Harasani, Hamid Mohamed |
| Contributors | Turano Taylor, Leslie Pamela ; Matthews, Paul |
| Publisher | King's College London (University of London) |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | https://kclpure.kcl.ac.uk/portal/en/theses/toward-the-reform-of-private-waqfs(a636c7b0-3b54-4851-a4d8-6eed6ff6e166).html |
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