Structural Compliance of Islamic Finance from
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Transcript Structural Compliance of Islamic Finance from
Dr. Azeemuddin Subhani
Structural Foundations
Ethical Foundations:
= Normative Basis of Finance
Conventional Finance:
Distinct from Juridical Foundations
Islamic Finance:
Embedded in Theological/Juridical Foundations
Sharp Ethical Focus Since the Global Financial Crisis:
Ethical Flaws of Conventional Financial System
Ethical Strengths/Compliance of Islamic Financial System
Structural Foundations
Unique Feature of Islamic Shari’ah:
Blending of :
Theological Foundations
Juridical Foundations
Ethical Foundations
Separate Examination of Ethical Compliance of Islamic
Financial System:
A Western Perspective
But Not Representative of Islamic Legal Ethos
Islamic Juridical/Ethical Norms
1. Freedom to Contract
2. Freedom from Riba
3. Freedom from Gharar
4. Freedom from Maysir
5. Freedom from Price Control and Manipulation
6. Entitlement to Transact at Fair Prices
7. Entitlement to Equal, Adequate, and Accurate Data
8. Freedom from Darar (Detriment)
9. Mutual Cooperation and Solidarity
Structural Compliance
Compliance with Gharar and Maysir Injunction
Standard Linguistic Meaning of Gharar
= Risk/Uncertainty
Legal Status of Gharar = Unequivocal Prohibition
Hence Legal Status of Risk/Uncertainty
= Unequivocal Prohibition
Yet Risk-Taking/Sharing = Deemed Underlying
Principle of the Permitted Norm of Bay’???
Hence Risk-Taking/Sharing = Deemed Foundational
Pillar of the Islamic Financial Architecture
Structural Compliance
Anomaly:
Risk-Taking/Sharing
= Unequivocal Prohibition under Gharar
Risk-Taking/Sharing
= Deemed Derived Permission under Bay’
Unanswered Question:
Compliance of Islamic Financial Practice with Ethico - Legal
Injunction of Prohibition of Gharar
Compliance of Islamic Finance with Islamic Ethics
Structural Compliance
Controversy:
Extent of Prohibited Risk-Taking:
If All Risk-Taking Prohibited
How Risk-Taking = Foundation of Islamic Financial System?
Even if Risk-Taking is the Foundation
Why Speculative Transactions are Prohibited?
If Only Excessive Risk-Taking is Prohibited
What Distinguishes “Excessive” from “Non-Excessive” ?
What is the Scriptural Authority for the Distinction?
Structural Compliance
Root of the Controversy:
Mistranslation of the Permitted Bay’:
As an Extended Connotation of “Trade”
As against its Specific Connotation of “Bilateral Exchange”
Distinguishing Characteristic of Trade
= Risk-Taking
Hence Risk-Taking
= Deemed Defining Characteristic of Permitted Bay’
Hence Risk-Taking
= Deemed Foundation of Islamic Financial Structure
Structural Foundations
Analytical Flaws:
Linguistic Meaning of Bay’
= Exchange
≠ Trade
Qur’anic Arabic Equivalent of Trade
Tijarah
Q. 2:275 Specifically Singles Out for
Permission:
Bay’ (Bilateral Exchange)
Not Tijarah (Trade)
Structural Foundations
Tijarah (Trade) Enjoys:
Qur’anic General Permission
BUT Not Specific Permission as Alternative to
Riba
Alternative to Riba is Bay’
Extreme Divine Importance of Riba/Bay’
Distinction
Miscomprehension of Riba/Bay’ Distinction
Punishment of Satanic Insanity
Structural Foundations
Bay’
=Bilateral Exchange
= Negotiation
= Give/Take: Offer/Acceptance
= Mother of All Contracts in Islamic Law
= Islamic Jurisprudence Insulates Bay’ Contract Against
All Risks
≠ Risk-Taking
Structural Foundations
Bay’
Linguistic Meaning:
All Exchanges including:
Commercial
Political
Social
Common Element of All Bay’ Contracts:
Inter-action of Two Heterogeneous and Opposing CounterParties in a Deal
A Process of Co-Generation
Commensurate with Creation of Everything in Pairs (Zawjan)
Structural Foundations
Bay’:
Defining Characteristic:
Not the Effect of the Transaction (Risk/Return)
But the Underlying Process of Generation of Any Effect
Not Risk-Taking as Generally Held
But Co-Generation = Inter-action of Opposites
Inter-action Leading to Go-Generation:
= The Only Common Legitimizing Factor of All Islamic
Contracts:
- Participatory
- Trading
- Leasing
Structural Foundations
Bay’:
Participatory Contracts:
Inter-action of Money & Labor in Musharaka and Mudaraba
Trading Contract:
Inter-action of Money and Commodity in Murabaha
Leasing Contract:
Inter-action of Money and Usufruct in Ijara
Structural Foundations
Riba:
Extant Scholarly Misconceptions:
Restricted Technical Meaning of Interest/Usury Only
Riba = 72 Abwab (chapters, kinds)
Deemed Prohibition Rationale: Human Exploitation
Not Commensurate with Direst Qur’anic Punishment for It
Focus of Prohibition:
Incorrect:
Effect of a Business Transaction
Correct:
Underlying Process of Generation of the Effect
Structural Foundations
Riba:
Islamic Legal Permission: The Effect
Profit-Making = Money Ultimately Generating More Money
Islamic Legal Regulation: The Generation of The Effect
Prohibition:
Self-Generation of The Effect (Ribawi Method)
Permission:
Co-Generation of The Effect (Bay’awi Method)
Structural Foundations
Derived Operative Principles for Ethico-Legal
Compliance:
Prohibition of Risk-Taking (Gharar)
Permission of Co-Generation (Bay’)
Prohibition of Self-Generation (Riba)
Actual Compliance:
Extensive Restructuring Required to Comply with the
Above Operative Principles