Contractualism in Employment Relationships: A Conceptual Discourse of Common Law and the Shariʿah

in Arab Law Quarterly
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Abstract

This article discusses contractualism in employment relationships from the perspectives of common law and the Shariʿah. While common law has developed a modern concept of employment relationships—a contract of service as opposed to a contract for services—Islamic history has shown a similar development. In fact, Islam has contributed immensely to the emergence of a contract of service. That contribution is the reason this article adopts an intertwined discourse of both systems. However, there are differences in such relationships; whereas an element of control dominates the contract of service in common law, the Islamic system places more emphasis on the principle of brotherhood. However, when it comes to the mutual trust and confidence of both parties in implementing the implied obligations under contract, both systems share the same values.

Contractualism in Employment Relationships: A Conceptual Discourse of Common Law and the Shariʿah

in Arab Law Quarterly

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References

2

See E. Sol Maria WesterveldContractualism in Employment Services: A New Form of Welfare State Government (Hague: Kluwer Law International2005).

6

See A.C.L. Davies“The Contract of Intermittent Employment”Industrial Law Journal36 (2007): 102; Mark Freedland “From the Contract of Employment to the Personal Work Nexus” Industrial Law Journal 35 (2006): 1.

9

See Simon Honeyball“The Contract, Employment and the Contract of Employment”Industrial Law Journal35 (2006): 30; Mark Freedland “Constructing Fairness in Employment Contract” Industrial Law Journal 36 (2007): 136; Hugh Collins “Employment Rights of Casual Workers” Industrial Law Journal 29 (2000): 73.

11

Deakin and Morrissupra note 4 pp. 149-151.

14

See Deakin and Morrissupra note 4 p. 151.

22

Ramzan Akhtarsupra note 5 pp. 202-218.

23

See Abdullah Alwi Hj HassanSales and Contracts in Early Islamic Commercial Law (New Delhi: Kitab Bhavan1997) Ch. XI.

25

See Mohammad Manzoor AlamPerspective on Islamic Economics (New Delhi: Institute of Objective Studies1996) p. 12.

26

See Abulhasan Muhammad SedeqEconomic Development in Islam (Kuala Lumpur: Pelanduk1996) pp. 23-24.

29

See Yusof Al-QardawiThe Lawful and the Prohibited in Islam (Kuala Lumpur: Islamic Book Trust1994) p. 125.

32

See Al-Qardawisupra note 29 p. 125.

55

Al-Sayutisupra note 46.

58

See David Cabrelli“The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?”Industrial Law Journal 34(4) (2005): 284-307. See also cases such as Malik v. BCCI [1997] 3 All ER 1; Scally v. Southern Health Board [1992] 1 AC 294.

59

See Doughlas Brodie“Beyond Exchange: The New Contract of Employment”Industrial Law Journal 27/21 (1998): 79-102.

60

See Mark R. FreedlandThe Personal Employment Contract (Oxford: Oxford University Press2003).

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