AN APPRAISAL OF THE SPLIT OF THE CONTEMPORARY MUSLIM JURISTS ON THE DOCTRINE OF CORPORATE PERSONALITY

Abstract

Corporate personality has been a point of debate and discussion for over decades among the contemporary Muslim jurists particularly when it comes to Islamic financial institutions as they claim to be Shariah-compliant whereas they are incorporated as a “separate legal personality” a concept that does not find its place in classical Islamic jurisprudence. According to some scholars, Muslim jurists of the classical period were well aware of this concept. Salmond observed that this concept of separate entity originated in idolatry-cultures particularly in Hindu culture. Such indications may also be inferred from the following Quranic verse: “And out of what Allah has produced in plenty as crops and as cattle, they assigned Him a share: And they say, according to their wish: “This is for Allah, and this- for our ‘partners’!” But the share of their ‘partners’ does not reach Allah, whereas the share of Allah reaches their ‘partners’! Evil (and unjust) is how they judge!  Thus, classical jurists, though well aware of this concept, did not attribute legal personality to Islamic institutions such as waqf, baitul mal and masjid. Hence, this remained an alien doctrine to Islamic jurisprudence throughout the middle ages. However, in near past this doctrine received recognition in the western courts of law. Thus, this phenomenon has led contemporary Muslim scholars to divergent views as to whether or not a separate legal personality may be assigned to a non-human being in Islamic law. This study will undertake an appraisal of conflicting views of Muslim Jurists based on evidences adduced from Islamic legal texts and traditions.