Insolvency, bankruptcy, discretion, judge, liquidator


An effective insolvency regime consists of specialized courts established for dealing with the cases of insolvency and/or bankruptcy. Such courts are either specialized bankruptcy courts, or commercial courts. The judges administering insolvency cases are highly specialized and they are known for their high ethical and professional standards. These judges play a very significant role in adjudicating the insolvency matters. However, an important question faced by all legal systems in this connection is the discretionary powers that these judges may be given under the law. Every legal system in the world, and all individual countries looking to establish such bankruptcy courts, need to give such discretion to the judges involved. However, the question is the degree to which such discretion may be conferred upon the judges. Being a separate legal system with its own features, the Islamic law has also addressed this issue of courts’ discretion in insolvency matters. The discretion of judge, called qadhi in the classical Islamic texts, has been well elaborated by the Muslim jurists of the previous centuries. The relevant literature on the issue of the discretionary powers of qadhi reveals that the Islamic law confers high powers of discretion upon the judge in insolvency related matters. This is mainly due to the fact that under Islamic law, a judge is an active participant in the entire adjudication proceedings. The duty of the judge is not restricted to the ascertainment of factual issues and the mere application of substantive laws. Instead, he/she is empowered under Islamic law to participate actively in the whole process and resolve the issue as much amicably as possible. In this article, we explore the issue of the discretionary powers of insolvency court/judge under Islamic law.



How to Cite

Badshah, S. N. ., Khoso, A. A. ., & Zada, N. . (2019). THE ROLE AND DISCRETION OF JUDGE IN INSOLVENCY MATTERS UNDER ISLAMIC LAW. The International Research Journal of Usooluddin , 3(1), 7-16. Retrieved from

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