Free Essay

Jurisprudence

In: Philosophy and Psychology

Submitted By tdzimega
Words 3027
Pages 13
TAXATION – TUTORIAL QUESTIONS

QUESTION 7
Tax can only be collected when it is due. Where the tax is due, there are two principal modes of collection. These are judicial and non-judicial. The question is better with in three parts. The first part will deal with conditions under which a tax becomes due. The second part will deal with the judicial mode of tax collection. The third which is the main thrust of this question will outline the four non-judicial modes of tax collection.

Under the law, the commissioner can collect tax only when the tax is due. And tax becomes due under different circumstances. For a tax payer subject to self-assessment under s. 78, the due date is when he files his assessment with the commissioner.

Under s 72(7) the commissioner may demand tax earlier than the basis period where the tax payer dies during the basis period or becomes bankrupt or is wound-up or goes into liquidation, or is about to leave Ghana indefinitely or is about to cease activity in Ghana, under those circumstances, the due date is the date the commissioner shall specify in the notice demanding the tax.

For those who pay tax by installment, their due date is the date each installment is due as provided under division III of part X of chapter 1.

For everybody else, the due date is within 30 days of the date of service of the notice of assessment.

Where the tax is due as explained above, the amount due is treated in law as a debt due to the commissioner. The CIT may sue to recover it.

Apart from the court, several other methods of recovery are available, normally referred to as non-judicial methods. The law specifically provides for the following:

1. Collection of Tax by distress: Under section 136 of Act 592, the CIT can distrain the movable property of a tax debtor by issuing an order in writing specifying the person against whose property the proceedings are authorized, the location of the property and the tax liability to which the property relates;

2. Using landed property as security for unpaid tax: Pursuant to section 137 of Act 592, the CIT can use the landed property of a tax debtor as security for the unpaid tax. This process relates to land or buildings situated in Ghana. Where the CIT seeks to use this procedure the law requires fulfill the following conditions. i. Must issue a notice in writing to notify the tax debtor of the CIT’s intention to apply to the Chief Registrar of Lands to use the tax debtor’s building or land as security for the unpaid tax. ii. If the tax payer fails to the pay tax due within 30 days from the date of service of the notice, the CIT may by notice in writing direct the Registrar of Lands that the land will be used as security to the extent of the interest of the tax debtor and to the amount specified in the notice. iii. Where the notice is served on the Registrar, the law directs the Registrar to register the notice of direction as if it were a mortgage or instrument over or charge on the land. iv. Where the tax debtor pays the tax, the CIT shall write to the Registrar of Lands to cancel the direction.
The person making the payment is indemnified against all proceedings civil or criminal notwithstanding any law, contract or agreement to the contrary.

3. Recovery of money from the debtor of a tax debtor: Under Section 138 of Act 592, the CIT may by notice in writing require any other person who owes, holds or is about to hold money belonging to the tax debtor to pay that money to the CIT.

4. Recovery of tax from the agent of a non-resident: Section 140 of Act 592 allows the CIT to take money from the agent of a non-resident taxpayer by notice in writing to the agent The law indemnifies the agent in such a situation.
QUESTION 8
Tax can only be collected when it is due. Where the tax is due, there are two principal modes of collection. These are judicial and non-judicial. The question is better dealt with in three parts. The first part will deal with conditions under which a tax becomes due. The second part will deal with the judicial mode of tax collection. The third which is the main thrust of this question will outline the four non-judicial modes of tax collection.

Under the law, the commissioner can collect tax only when the tax is due. And tax becomes due under different circumstances. For a tax payer subject to self-assessment under s. 78, the due date is when he files his assessment with the commissioner.

Under s 72(7) the commissioner may demand tax earlier than the basis period where the tax payer dies during the basis period or becomes bankrupt or is wound-up or goes into liquidation, or is about to leave Ghana indefinitely or is about to cease activity in Ghana, under those circumstances, the due date is the date the commissioner shall specify in the notice demanding the tax.

For those who pay tax by installment, their due date is the date each installment is due as provided under Division III of Part X of Chapter 1.

For everybody else, the due date is within 30 days of the date of service of the notice of assessment.

Where the tax is due as explained above, the amount due is treated in law as a debt due to the commissioner. The CIT may sue to recover it.

Apart from the court, several other methods of recovery are available, normally referred to as non-judicial methods. The law specifically provides for the following:

1. Collection of Tax by distress: Under section 136 of Act 592, the CIT can distrain the movable property of a tax debtor by issuing an order in writing specifying the person against whose property the proceedings are authorized, the location of the property and the tax liability to which the property relates;

2. Using landed property as security for unpaid tax: Pursuant to section 137 of Act 592, the CIT can use the landed property of a tax debtor as security for the unpaid tax. This process relates to land or buildings situated in Ghana. Where the CIT seeks to use this procedure the law requires the fulfillment of the following conditions. i. Must issue a notice in writing to notify the tax debtor of the CIT’s intention to apply to the Chief Registrar of Lands to use the tax debtor’s building or land as security for the unpaid tax. ii. If the tax payer fails to pay the tax due within 30 days from the date of service of the notice, the CIT may by notice in writing direct the Registrar of Lands that the land will be used as security to the extent of the interest of the tax debtor and to the amount specified in the notice. iii. Where the notice is served on the Registrar, the law directs the Registrar to register the notice of direction as if it were a mortgage or instrument over or charge on the land. iv. Where the tax debtor pays the tax, the CIT shall write to the Registrar of Lands to cancel the direction.
The person making the payment is indemnified against all proceedings civil or criminal notwithstanding any law, contract or agreement to the contrary.

3. Recovery of money from the debtor of a tax debtor: Under Section 138 of Act 592, the CIT may by notice in writing require any other person who owes, holds or is about to hold money belonging to the tax debtor to pay that money to the CIT.

4. Recovery of tax from the agent of a non-resident: Section 140 of Act 592 allows the CIT to take money from the agent of a non-resident taxpayer by notice in writing to the agent. The law indemnifies the agent in such a situation.

6. Tax appeal (based on Question 6 and Question 2(a))

Introduction:
A good appreciation of the procedure for tax appeal in Ghana requires a proper understanding of sections 128-133 of Act 592 together with Orders 58, 54 and 3 of the High Court (Civil Procedure) Rules, 2004 (C.I.47).

A
Preliminary matters
Cause of action s 128 (Act 592)
Under section 128 of Act 592, the right to appeal arises where the CIT disallows the tax payer’s objection to tax assessment or where the tax payer elects to treat the CIT’s non-response as rejection 90 days after the tax payer has filed his objection to tax assessment.

Where the CIT assesses a person to tax, the tax payer can raise an objection with the CIT if he is dissatisfied with the assessment. For a person subject to provisional assessment under s 76, this objection must be raised within 9 months of the basis period to which the assessment relate. Other tax payers are to raise their objection within 30 days after the CIT serves the notice of assessment on them.

When the objection is raised to the CIT, he can change the earlier assessment or stick to the earlier assessment and reject the tax payer’s objection. The CIT’s consideration of the tax payer’s objection is a quasi-judicial function and is appealable to the High Court.

Jurisdictional matters
Order 58 of the High Court (Civil Procedure) Rules give jurisdiction in tax matters to the Commercial courts.

The CIT is empowered to accept the objection and thereby amend his earlier assessment or reject the objection and affirm his earlier assessment. If the CIT does not respond to the objection, the law permits the tax payer to elect after 90 days of his objection, to treat the CIT’s silence as amounting to a rejection of the objection. The CIT’s decision on the tax payer’s objection is referred to as an objection decision. It is from this objection decision that the tax payer is given the right under section 128 to appeal to the High Court.

Jurisdictional matters: (forum, court, place etc)
Order 58 gives jurisdiction in tax matters to commercial courts. Order 54 provides special rules for tax matters. Order 3 determines the venue in the sense of location.

Parties and capacity s 129(6); Order 54 r2(2)
In a tax appeal, the tax payer is the appellant. While s 129(6) of Act 592 designates the A-G as the Respondent, Order 54 r2(4) of CI 47 designates the CIT as the Respondent. This apparent contradiction is resolved by the fact that IRS used to be a department under the Ministry of Finance. Now as a service, IRS has assumed legal personality of its own and is therefore capable of suing and being sued.

B
Procedural Steps in a tax appeal (Answer to Question 6 and Question 2(a)) 1. Both Act 592 and Order 54 of C.I. 47 require that the tax payer files 5 copies of the notice of appeal to the Registrar of the High Court within 30 days of receipt of objection decision or within 30 days after his election to treat the CIT’s non-response as a rejection. (Tax payer may obtain extension within 3 months of expiration of 30 days. No extension shall be entertained after 3 months). 2. Tax payer serves copy of notice of appeal on Commissioner within 5 working days of service on Registrar (Order 54). 3. Registrar replies within 15 days of service on him. 4. (Order 58) commercial court rules require the Administrator to refer matter to a pretrial judge within 3 days of CIT’s reply. 5. Pretrial judge invites parties within 30 days of assignment to him. 6. Pretrial judge settles matter through negotiation, mediation or arbitration. Parties may also at this stage elect to send matter to external person or body. Pretrial judge shall give directions and time. 7. Settlement read over to parties and entered as judgment of the court. 8. Pretrial evidence is without prejudice. Parties may be represented. 9. Otherwise, matter goes to full trial. 10. Use of assessors at full trial

Grounds and pleadings
To be numbered consecutively.

Payment of tax
Under Order 54 r 4 and s 131, a person subject to provisional assessment must pay an amount not less than a quarter of his assessment for the basis period pending the determination of his appeal.

Burden of Proof
The burden of proof in tax appeals lie on the tax payer to prove that the CIT’s assessment was wrong. And he discharges the burden on a balance of probabilities.

Question 8
Examine four (4) statutory provisions in the Internal Revenue Act, 2000 (Acts 592) designed to counteract, prevent, or minimize tax avoidance.
Tax avoidance, to use the words of Professor Quitcroft, is “the act of dodging tax without breaking the law”. Section 112(2) of Act 592 defines tax avoidance schemes to include “an arrangement, one of the main purposes of which is the avoidance or reduction of liability to tax”. Tax avoidance is concerned with exploiting the detailed provisions of the tax laws to avoid paying tax or to reduce the total amount of tax payable. Thus in Ayshire Pullman Motors Services v. IRC, Lord Clyde L.P declared that “No man in this country is under the smallest obligation, moral or other so as to arrange his legal relations to his business or property so as to enable the Inland Revenue to put the largest possible shovel into his stalls”. In this wise, there is no infringement of any of the provisions of the tax law.
According to Ali-Nakyea Abdallah in his book on Taxation in Ghana, “If individuals find it prudent to tax the necessary lawful steps to minimize the incidence of tax, it is logical to expect that the Revenue authorities would also measures to ensure that provisions in the law are so closely knit as to prevent being unduly exploited by persons for whom the relief was not originally intended…”.
The anti-avoidance legislations in Act 592 include sections 24(3), 69, 70, 71 and 112.
Section 112 of Act 592 makes a general provision rule as a guide to anti avoidance as follows: 1. For the purpose of determining liability to tax under the Act, the Commissioner may re-characterize or disregard an arrangement or part thereof that is entered into or carried out as part of the tax avoidance scheme,

a. Which is fictitious and does not have a substantial economic effect, or

b. The form of which does not reflect its substance.

Change in accounting dates: Under section 24 of Act 592 the basis period of a person is, in the case of an individual or partnership runs from 1st of January to the 31st of December, and that of a company or body of persons consists of the accounting year of the company or body of persons. The anti-avoidance scheme here is that a company or body of persons can only change its accounting date only once in the lifetime of the company or body with the prior written approval of the Commissioner. otherwise a company which has its accounting date running from 1st of January to 31st December and is expecting to made a huge profit in December of the following year, may apply to have its accounting date changed to say, 1st November to 31st October of the next year so as to enable them to hold onto that expected profit for almost a whole year which profit they might as well invest before having to pay it. Meanwhile the rate of tax may change to the benefit of the company. In tax issues time is of the essence.
Income splitting: this is provided for in section 69 of Act 592. It occurs when someone in a higher tax bracket splits or shares his income with another person in a lower tax bracket so as to reduce his general tax liability or that of his associate. The tax avoidance scheme here is that the Commissioner is empowered to adjust the chargeable income of both persons to prevent a reduction in the tax payable. Under this section, a person is treated as having attempted to split income where: a) that person transfers income, directly or indirectly, to an associate, or

b) that person transfers property, including money, directly or indirectly to an associate with the result that the associate receives or enjoys the income from that property.

Transfer pricing: This occurs between companies, their associates and subsidiaries where either of them provides goods or services to the other at a price different from their market value such that the company providing the goods or services reduces its profits or makes no profits at all thus avoiding tax. For example a subsidiary company which has a tax holiday may sell its produce to its mother company at a price higher than the market value of the products. So that the profits of the mother company is transferred to the subsidiary which is exempt from paying tax and since the mother company got the products at above the market value, it in-turn makes loses and thus does not pay tax.
Thin capitalization: this is provided for under section 71 of Act 592. Companies finance their operations through debt and equity. Under section 14 of Act 592 interest on loans or debt is an allowable deduction. Thus where a company wants to decrease its tax liability, it could increase substantially the debt component of its capital or even finance its whole operations from debt. The anti-avoidance scheme under section 71 is thus for the debt of a company to be allowed as a deduction it must not exceed twice of its equity. Therefore where the debt of the company exceeds twice the equity, the company will not be allowed to deduct more than twice of the equity as interest or loss.…...

Similar Documents

Premium Essay

Jurisprudence

...INTRODUCTION Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. A judicial precedent contains in itself a principle of law. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries . the common law of England has been built up the decisions of England judges. There are so many reasons why precedents operates as an authoritative source of law and it also has many kinds according to its probative force. decisions than to the views of text writers. A judicial precedent speaks with authority. It is an evidence of law and source of it. The authority of precedents is great because of power, skill and professional reputation of judges who make them. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis, which is Latin for "let the decision stand" i.e. to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. Judge made law via the cases upon which they decide is one of the oldest sources of law. This provides in the law consistency and predictability. Judicial precedent means a judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for......

Words: 4997 - Pages: 20

Premium Essay

Analytical Jurisprudence

...ANALYTICAL JURISPRUDENCE (LEGAL POSITIVISM) Synopsis: (i) Socio-economic and historical context on which it arose. (ii) Positivism in Philosophy – the important founder Augustine Cômte. (iii) Its expression in Law – Analytical Legal Positivism. (a) Different aspects of Legal Positivism (b) John Austin (c) Neo-Positivist Trends (aa) Hart’s Concept (bb) Linguistic Trend (iv) Kelsen’s Pure Theory of Law (v) General Appraisal and Critique (1) Socio-economic and historical context Just before 1848 Revolution, Marx says in the development of Bourgeois class there are 2 phases to distinguish: (i) One which constitutes support Absolute Monarchy (ii) The one which constitutes itself as class, overthrows Feudalism and it establishes its own political rule (Bourgeois Rule) The 1st phase lasted for 3 centuries from 16th C – 18th C The 2nd phase roughly from 1780’s to 1840’s. Actually 1789-1848 is called the Ag of Revolution. During the 1st phase, when it is still constituting itself – their philosophical spokesmen are found in NL school – i.e. Hobbes, Locke etc. – Notion of Justice and equality show the core they argue for change against status quo. The philosophy is metaphysical but revolutionary because it is fighting for change against the status quo. 2nd Phase: The triumph/victory of the Bourgeoisie. In this phase – consolidation of the Bourgeoisie clan at the political level - this found expression in the French Revolution 1789...

Words: 4510 - Pages: 19

Free Essay

Therapeutic Jurisprudence

...greater focus on this may foresee a decrease in the rate of reported mental health disorders within the prison system. The basis for the above approach was founded on the concept of Therapeutic Jurisprudence (TJ), the notion that the law can play a role as a potential means of therapeutic influence and this could be achieved by making court proceedings more therapeutic to mentally ill prosecutors through involvement in treatment, MHCs hope to produce better outcomes for their defendants. The underlying belief of this approach is that the charges these individuals face are more a result of their mental illness than a criminality.  It must be noted that MHCs have expanded rapidly in the past several decades to provide more efficient coordination of treatment and supervision of prosecutors with behavioral health problems. A significant number of prosecutors in these court-based programs have co-occurring mental disorders, which predict early termination, re-arrest, and other negative outcomes (Arrigo, 2010). More recent years have seen a proliferation of problem solving courts designed to rehabilitate certain classes of prosecutors and thereby resolve the underlying problems that led to their court involvement in the first place.   Therapeutic Jurisprudence The term Therapeutic Jurisprudence first appeared in the law literature in the late 1980s, in the context of mental health law. TJ is defined as "the study of the extent to which substantive rules, legal procedures, and......

Words: 2318 - Pages: 10

Premium Essay

Q&a Jurisprudence

... R outledge Revision: Questions & Answers  Jurisprudence 2011–2012 Each Routledge Q&A contains approximately 50 questions on topics commonly found on exam papers, with answer plans and comprehensive suggested answers. Each book also offers valuable advice as to how to approach and tackle exam questions and how to focus your revision effectively. New Aim Higher and Common  Pitfalls boxes will also help you to identify how to go that little bit further in order to get the very best marks and highlight areas of confusion. And now there are further opportunities to hone and perfect your exam technique online. New editions publishing in 2011: Civil Liberties & Human Rights Commercial Law Company Law Constitutional & Administrative Law Contract Law Criminal Law Employment Law English Legal System Routledge Q&A series Equity & Trusts European Union Law Evidence Family Law Jurisprudence Land Law Medical Law Torts For a full listing, visit http://www.routledge.com/textbooks/revision R outledge Revision: Questions & Answers Jurisprudence 2011–2012 David Brooke Senior Lecturer in Law and Module Leader in Jurisprudence at Leeds Metropolitan University Fifth edition published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the U S A and Canada by Routledge 270 Madison Avenue, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library,......

Words: 105136 - Pages: 421

Premium Essay

Command Theory

...cvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmrtyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnm Jurisprudence and Legal Theory LLB2003 Austin’s Command Theory 11/22/2013 Falon Jacobs 1101469 | John Austin is considered the creator of the school of analytical jurisprudence, as well as, more specifically, the approach to law known as “legal positivism.” Austin’s work came at a time when the common law doctrines reigned supreme, that is, declaring the law as it was and no more. Austin, like Bentham, separated law from morality in his definition of a law as a command. This allowed him to distinguish between laws of conduct and science termed “positive morality” and “laws metaphorical or figurative” as “laws improperly so called”, and divine laws and positive laws as “laws properly so called”. Austin developed his own “command theory”; commands of a sovereign were backed by sanctions, issued in reliance upon the habit of...

Words: 1383 - Pages: 6

Free Essay

Concept of Law

...0-19-876122-8) is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism (the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality) within the framework of analytic philosophy. In this work, Hart sets out to write an essay of descriptive sociology and analytical jurisprudence. The Concept of Law provides an explanation to a number of traditional jurisprudential questions such as "what is law?", "must laws be rules?", and "what is the relation between law and morality?". Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".[1] As a result Hart's book has remained "one of the most influential works in modern legal philosophy",[2] and is also considered a "founding text of analytical legal philosophy",[3] as well as "the most successful work of analytical jurisprudence ever to appear in the common law world The starting point for the discussion is Hart's dissatisfaction with John Austin's "Command Theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries to establish the differences between the gunman's orders and......

Words: 331 - Pages: 2

Premium Essay

Criminology

...INTRODUCTION TO LAW MBHAMALI BHEKISISA STUDENT No: 214527272 TUTORAL 8: Prof Devenish DATE: 10-04-14 TUTOR: Marco Nel HOW EQUILITY JURISPRUDENCE OPERATES IN SOUTH AFRICA LAW WITH REFERENCE TO CASE LAW In Dr Khumalo situation he can challenge the court but following certain stages of the emerging jurisprudence of equality in South Africa and the relationship between section 9(1) and section 9(3). Dr Khumalo who is infringement of the right to equality must reach the jurisprudence if he has treated differently and if the challenged provision differentiates between him or categories of him and that the differentiation is not rationally connected to a legitimate purpose to satisfy Harsens test. Dr Khumalo then has to prove unfair discrimination in terms of section 9(3) which requires the following, Dr Khumalo either individually or as part of a group of persons has been treated differently and the differentiation is based on one of the specified grounds expressly enumerated in section 9(3) like ethnic or social origin which affected in Dr Khumalo. The ground for differentiation of Dr Khumalo must be based on attributes or characteristics which impact on human dignity in a way that constitutes discrimination and the said discrimination impacts on the Dr Khumalo (applicant) in manner that is unfair. If the discrimination is held to be unfair, the measure may still be redeemed if it has been made in terms of a law of general application as required by the limitation clause and is...

Words: 303 - Pages: 2

Premium Essay

Postmodernism in Islamic Jurisprudence

...2013.13.1.1756 Postmodernism Approach in Islamic Jurisprudence (Fiqh) 1 Ahmad Badri Abdullah, 1Mohd Anuar Ramli, 2Mohammad Aizat Jamaludin, 1 Syamsul Azizul Marinsah and 3Mohd Roslan Mohd Nor 1 Department of Fiqh and Usul, Academy of Islamic Studies, University of Malaya, 50603 Kuala Lumpur, Malaysia 2 Halal Product Research Institute (HPRI), Universiti Putra Malaysia 3 Department of Islamic History and Civilization, Academy of Islamic Studies, Universiti of Malaya, 50603 Kuala Lumpur, Malaysia Abstract: The history of Islamic jurisprudence (fiqh) has gone through various phases. From the time of the Prophet Muhammad (PBUH), it has continuously become a dynamic force in fulfilling the contemporary needs of the Ummah. After the period of imitation (taqlid), Islamic jurisprudence enters the renewal process (tajdid) in order to rejuvenate Muslim society to the practice of Ijtihad. The emergence of new approach was caused by the changes and developments in human life that spark to the existence of new issues, which their answers cannot be traced in the works of classical fiqh. Accordingly, some would prefer to utilize the postmodernism approach in the process of interpretation of the divine texts in order to get the ruling (hukm). Some of the thinkers and scholars seem to neglect the normative guide in classical Usul al-Fiqh (the principle of Islamic jurisprudence) and tend to formulate new approaches in jurisprudence deciding process such as deconstruction,......

Words: 6039 - Pages: 25

Free Essay

Principles of Islamic Banking

...* Principles of Islamic banking Islamic banking refers to a system or banking activity that is consistent with the Islamic jurisprudence [arab. fiqh] based on the principles of the Sharīʿah. Literally, it may be translated with “Path to the water of source”, rendering the “right” way that Allah has carved out for all Muslims. Main sources of the the Sharīʿah are the Qur’an and the Sunnah. Basic aims of the Sharīʿah are the spread of wisdom and welfare through transferring faith including beliefs and practices. In addition, in the past centuries Islamic religious scholars and jurists have been developing its practical application [arab. fatwa] to a system of instructions; some of them find their way into the constitutions of Arabic countries like Kuwait. Today Islamic jurisprudence is a code of conduct that on the one hand regulates the relationship between Allah and the mankind [arab. ʿibādāt] and on the other hand the economic and interpersonal relationship between individuals [arab. mu’amāt]. Since the entire legal framework of Islamic banking is codified in the Sharīʿah, every Islamic bank in the GCC region and the majority of the remaining Islamic banks worldwide have an in-house Sharīʿah -board that audits the compatibility of the banks’ products and services with the restrictions imposed by the Islamic law. In the following, the main principles of Islamic banking are explained. * Prohibition of riba, gharar and maysir (Qur’an 4:161) The first and most important......

Words: 1668 - Pages: 7

Premium Essay

Jurisprudence

...THE THOMAS SIMS CASE In the Super Supreme Court of Massachusetts, 1854 The defendant, having been arrested and imprisoned under the Fugitive Slave Act of 1850, was denied his petition for a writ of habeas corpus and ordered returned to the State of Georgia into the custody of his owner, James Potter. He brings a petition of error before this Court and prays for issue of the writ, that he may have the lawfulness of his imprisonment tried upon his discharge. The facts sufficiently appear in the opinion of the Chief Justice. TRUEPENNY, C.J. The defendant is a colored person living in Boston, Massachusetts. Upon complaint of John B. Bacon of Savannah, Georgia, acting as agent and attorney of James Potter of Chatham, Georgia, the defendant was arrested pursuant to a warrant issued by George T. Curtis, Commissioner of the Circuit Court of the United States for the Massachusetts District, charging the defendant with being a fugitive from labor, and with having escaped from Georgia whilst owing service or labor to said Potter. U.S. Marshal Charles Deven and U.S. Deputy Marshal Frederick D. Byrnes, acting under direction of the warrant, arrested and imprisoned the defendant on the 4th of April, 1851. The defendant claims via petition, both signed and sworn to by him, that he was free, and not a slave. The defendant prayed for a writ of habeas corpus so that he may be discharged from his imprisonment and brought before a court to have his case heard. Counsel for......

Words: 2888 - Pages: 12

Free Essay

Questins for Llb Part 1

...Law of Torts 1. Discharge of torts 2. Remedies in tort 3. Nuisance 4. Liability – absolute and vicarious 5. The case of Ashby v White 6. Explain tort-similarities & differences with crime and contract 7. Who can’t sue and who can’t be sued 8. Defenses in tort 9. Damages and its kinds 10. Negligence 11. Defamation Easement 1. Easement through prescription, custom and grant 2. Termination of easement 3. Easement and its kinds Islamic Jurisprudence 1. Sources of Islamic law 2. Punishments in Islam 3. Witness in Islam 4. Theory of abrogation 5. Schools of thought 6. Public and private rights 7. Contract in Islam 8. Legal capacity 9. Jehad 10. SURA 11. Ownership 12. Sources of revenue 13. Sovereignty and concept of a state in Islam English Jurisprudence 1. Jurisprudence – its kinds 2. Imperative theory of law 3. Ownership 4. Legal capacity 5. Sources of law 6. Territorial nature of law 7. Administration of justice 8. Possession 9. Strict liability 10. Vicarious liability 11. Define law. Explain advantages, disadvantages of fixed rule of law 12. Question of law and fact and mixed question of law and fact 13. Classification of civil law 14. Evidence 15. Theories of punishments Criminal Law PPC 1. Private defense 2. Kinds of punishments 3. Abetment 4. Robbery and dacoity and extortion 5. Trespass 6. Riot and affray 7. Qatl 8. Defamation 9. Unlawful assembly 10. Hurt 11. Common......

Words: 279 - Pages: 2

Premium Essay

Benchmarking

...Related By Muslim ). سئل رسول الله صلى الله عليه وسلم عن الإحسان , فقال : " أن تعبد الله كأنك تراه , فإن لم تكن تراه فإنه يراك ............." ( رواه مسلم عن إبن عمر رضى الله عنه ) Auditing in Islamic Methodology CONTENTS Preface - Meaning of Auditing in Islamic Methodology. - Objectives of Auditing in Islamic Methodology. - Features of Auditing in Islamic Methodology... - Principles of Auditing in Islamic Methodology. - Standards of Auditing in Islamic Methodology. - Reports of Auditing in Islamic Methodology. PREFACE Moslems – certainly believe that, Islam is a way of life, it is a believe, jurisprudence, a state, strength, a sward, etc. It is a whole system. They also believe that Islamic jurisprudence is universal for all mankind, perfect and comprehensive for all things and affairs, permanent for all times and indivisible and inseparable. It should be applied as a whole system. Allah says: “We have neglected nothing in the book” (Al-Anaam- 38) . ( مَّا فَرَّطْنَا فِي الكِتَابِ مِن شَيْءٍ ثُمَّ إِلَى رَبِّهِمْ يُحْشَرُونَ ( (الأنعام: 38) Islamic as a whole system, consists of a set of sub-systems which integrate and act together to achieve spiritual and secular satisfaction for mankind. The Islamic economic system is a sub-system. This note-book is mainly concerned with Auditing in Islamic Methodology as a branch of the Islamic Accounting System (Accounting in......

Words: 1482 - Pages: 6

Premium Essay

Memorandum

...definitions of law and theories of jurisprudence that were set forth in Approaches and Perspective to the Study of Law in order to better understand the other readings because it gives you a basis and a better understanding of the topics that are being discussed. In order to understand the language in these complex documents, it is beneficial to first have a ground to stand on and the building blocks that you will need. These would include the information provided in the Approaches and Perspective to the Study of Law piece. 

It helps to know the history of law, which is laid out in the document, The End and Aim of Law. It first tells you of how government was run in a Roman empire and under the direction of an Emperor. In today’s world, society is run very differently that than of more historic times. To think of how it was then, imagine if the President was an Emperor and he had rule over everything. There were no questions and whatever he said, came above all other laws. He would no longer need to thoughts behind natural law, analytic, or normative jurisprudence. Today, there is no one ruling power, at least in the United States. Congress, the President, jurists, and many other branches, work together in order to obtain and create understandable laws that are set forth for the good of our citizens. In order for this to happen, and throughout the course of history, they had to use devices such as natural law and analytic and normative jurisprudence. Natural law......

Words: 927 - Pages: 4

Free Essay

Fuller Morality of Law - Jurisprudence

...Much of the 18th and 19th century’s jurisprudence field was ruled by the positivist school of thought - unseating the natural law theories of the time, with its clear separation of law and morality coupled with empirical methods. The 20th century however, saw a huge of interest again in the natural law theory. American legal philosopher, Lon Fuller who was “an outsider within the intellectual climate of mid-twentieth century legal philosophy” today, stands as “the leading natural lawyer” at the forefront of it. However, despite seeming to conform to natural law thinkers, Nicholson claims that Fuller’s “natural law terminology should not be allowed to obscure his originality”. He eschews the Christian doctrines normally present in natural law, and instead presents a more procedural approach to marry the ideas of morality and law. This essay will explore his claims - namely the “internal morality of law”, its moral authority and also further the argument that posits the inherent intertwine of law and morality is correct and necessary as the first line of defence against evil regimes and as a check and balance to ensure government accountability. Fuller’s Internal Morality of Law For context, it’s worth noting what Fuller believes as the purpose of law - that it is a purposive “enterprise of subjecting human conduct to the governance of rules”. Fuller begins by introducing two types of moralities - the morality of duty and aspiration. He describes the two using “an......

Words: 3199 - Pages: 13

Premium Essay

Law Course

...is merely indicative. In order to keep up with the recent developments in law and the development of various concepts and ideologies, the subject faculty will supply detailed syllabus during the course of the scheme. The subject faculty will also supply the seminar topics for each student for each semester separately. The student should ensure that they are allotted the seminar topics in each of the subjects at the beginning of the semester itself. LEGAL THEORY I 1. Nature of jurisprudence 2. Meaning of Law 3. Natural Law theories 4. Classical Positivism 5. Pure Theory of Law 6. Analytical School of Law 7. Sociological School of Law 8. American Realism 9. Scandinavian Realism 10. Historical and Anthropological Jurisprudence 11. Marxist Theories of Law and State 12. Feminist Jurisprudence 13. Postmodernist Jurisprudence 12 SUGGESTED READINGS 1. Lloyd's introduction to jurisprudence 2. Jurisprudence by Dias 3. Jurisprudence by Mahajan 4. Jurisprudence by Bodenheimer 5. Jurisprudence by Wayne Morrison 6. Concept of Law H.L.A. Hart 7. Social Dimension of law by Julius Stone 8. Law in the Changing Society by Friedman 9. Law in the making by C.IZ. Allen 10. 1300ks on Constitutional Law in India and Constitutional JUrispruden:] \/ --CONSTITUTIONAL LAW-l 1. Preamble - Importance- amenability 2. Fundamental Rights -concept -Nature -Necessity and justification -Fundamental rights under Indian Constitution. 3. Definition of State -Other authorities......

Words: 1218 - Pages: 5