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The study examines bankruptcy in Islam from the perspective of the Ja’farī school of jurisprudence. To this end, it first describes the meaning of the term ‘iflās’ (bankruptcy). Then, considering the connection between ‘i’sār’ (insolvency) and iflās, the article elucidates the relationship between iflās and i’sār as well as the differences between them.
However, the main issues the paper deals with are the conditions required for the issuance of the bankruptcy judgment and its effects on the debtor and the creditors. Meanwhile, it seeks to show that the provisions of Islamic and Shiite bankruptcy laws are debtor-friendly. Moreover, the article explores the Shiite resources in order to demonstrate the similarities between Islamic bankruptcy and the prevailing laws in Western countries.
The study of Islam as a system of law is a subject that has recently caught the attention of Western lawyers and jurists. Although many significant books, articles, and studies have been drawn up on the Islamic law, the Shiite school of jurisprudence, which is of great interest, has been disregarded and not widely appreciated by a majority of the writers and researchers of the field. Shi’ah is divided into numerous sects. The most important of sects of Shi’ah are Ithnā ʿAsharīs (the Twelver), Zaydis, and Ismailis. Since the founder of the Ithna Ashari Shiite school of law is Imam Ja’far al-Sadiq (6th Imam), the Twelvers are also called the followers of the Ja’farī sect. To clarify the reason why Ithnā ʿAsharī Shia called Ja’farī, it is mentioned that the Islamic nation divided into two sects after the death of the Prophet of Islam: Followers of the caliphs and followers of Imam Ali (who was the fourth Caliph as well). However, the four Sunni schools (Hanafī, Malikī, Shafi’ī, and Hanbali) were also established in the era of Imam Sadiq and later. As each of the Sunni schools named after its chief and founder, the name of the Shi’ah school leader at that time, Imam Sadiq, was considered for this sect of Shi’ah1; therefore, Ja’farī school or Ja’farī fiqh is the school of jurisprudence in Ithnā ʿAsharī Shi’ah. Apart from religious and moral aspects, Islam contains a system of law which in various ways can regulate the relationships of individuals, the society with individuals, and the government with the society and individuals. These three dimensions of Islam together are called Shari’a. Knowledge of Shari’a can be divided into two kinds: Knowledge of basic principles (ilm al-usul) and science of branches of Islam (ilm al-Furu). The second is also called ilm al-fiqh (jurisprudence) which concerns the rules taken by the jurists from the principles of Islam. In fact, the moral rules, the rules on the worship of God, and, also, the rules on social relations and legal rules are driven from ilm al- fiqh. Islamic jurisprudence deals with all aspects of human life such as worship, transactions, social relation, marriage, divorce, legal issues, war, government, judgment, and punishment. However, the whole jurisprudential issues can be classified into acts of worship and transactions. The latter subdivided into contracts, unilateral obligations (one-party contract) and miscellaneous rulings.
Bibliographic Information
Title: Bankruptcy in Ja’farī Jurisprudence
Author(s): Heshmatollah Samavati
Published in: Turkish Journal of Shiite Studies, 2/2, 2020.
Language: English
Length: 18 page
