The growing importance of Islamic finance, with the participation of transnational law firms staffed by (often non-Muslim) common and civil law-trained lawyers, raises unique problems of legal ethics. Muslim customers and investors demand services that fully comply with Shari'ah rules, primarily the prohibition of riba (understood as "interest"), while at the same time a variety of forces push Islamic financial institutions ("IFIs") towards the emulation of interest-based finance. Islamic finance lawyers are faced with a conflict between the zealous representation of their IFI clients and fidelity to the fundamental principles upon which Muslim consumers and investors depend. This paper suggests that this problem cannot be solved by reference to an "amoral" theory of legal ethics under which the lawyer's primary duty is of zealous advocacy on behalf of her client. Instead, a lawyer should be guided by a duty of fidelity to Shari'ah as a system of law. Following Wendel, this paper argues that the conflict between the Islamic finance lawyer's fiduciary duty to her client and the "ethical" injunctions of Shari'ah should thus be conceptualized as a "law-law" conflict. However, this does not suggest that the lawyer must be constrained to the most restrictive interpretation of Islamic law or become an expert in classical jurisprudence. First, Islamic law is not static and in fact provides several permissible techniques for adapting the law to changed circumstances. Further, the lawyer may usually rely on the opinions of a Shari'ah Supervisory Board composed of qualified scholars to guide her through these conflicts.

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Arjona SebastiÓ, CÚsar; Jehle , Greg

Islamic law and the limits of amorality: Re-conceptualizing the legal ethics of transnational islamic finance

09/2018
The growing importance of Islamic finance, with the participation of transnational law firms staffed by (often non-Muslim) common and civil law-trained lawyers, raises unique problems of legal ethics. Muslim customers and investors demand services that fully comply with Shari'ah rules, primarily the prohibition of riba (understood as "interest"), while at the same time a variety of forces push Islamic financial institutions ("IFIs") towards the emulation of interest-based finance. Islamic finance lawyers are faced with a conflict between the zealous representation of their IFI clients and fidelity to the fundamental principles upon which Muslim consumers and investors depend. This paper suggests that this problem cannot be solved by reference to an "amoral" theory of legal ethics under which the lawyer's primary duty is of zealous advocacy on behalf of her client. Instead, a lawyer should be guided by a duty of fidelity to Shari'ah as a system of law. Following Wendel, this paper argues that the conflict between the Islamic finance lawyer's fiduciary duty to her client and the "ethical" injunctions of Shari'ah should thus be conceptualized as a "law-law" conflict. However, this does not suggest that the lawyer must be constrained to the most restrictive interpretation of Islamic law or become an expert in classical jurisprudence. First, Islamic law is not static and in fact provides several permissible techniques for adapting the law to changed circumstances. Further, the lawyer may usually rely on the opinions of a Shari'ah Supervisory Board composed of qualified scholars to guide her through these conflicts.
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Islamic law and the limits of amorality: Re-conceptualizing the legal ethics of transnational islamic finance
Arjona SebastiÓ, CÚsar; Jehle , Greg
Transnational Law & Contemporary Problems
Vol. 27, n║ 2, 09/2018, p. 249 - 275

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