A critical examination towards the islamic discourse on “limited liability”
Rizkiah,S. K1, Muhammadin, F. M2.
The concept of limited liability has been a very important component
of the development of the global economy. However, while limited
liability is currently a reality all over the world including the Islamic
nations, it is not without discourse among the Muslim jurists. The
debate mainly revolves around two core issues. The first issue is the
concern of some jurists that the only acknowledged legal entity in
Islamic law are natural persons, and that legal persons (like limited
liability corporations) are ‘fictitious’. The second issue concerns how
the owners of the limited liability companies have rights to residual
profits of the company, but do not bear the liability towards the debt
when insolvency occurs. Some jurists are concerned because the
Shari‘ah dictates that paying debts is a very serious matter. Using
the literature research method, this article critically examined the
debate between the jurists especially in the two issues mentioned
earlier and determined which argument is stronger. It was found
that, in the end, establishing a legal entity other than natural persons
as well as barring company owners from debt liability are very hard to justify under the Shari‘ah. However, given the status-quo
construct of global economics, not utilizing limited liabilities may
cause devastating economic repercussions. Therefore, a new model
of corporation might need to be researched and explored in order to
suit the necessities of the economy as well as being consistent with
the Shari‘ah.
Affiliation:
- Universitas Gadjah Mada, Indonesia
- Universitas Gadjah Mada, Indonesia
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