Ijtihad Network Being Wise and Faithful Muslim in the Contemporary World
In his work “Islamic Finance: Law, Economics, and Practice”, Professor Mahmoud El-Gamal, as he himself claims, attempted ‘a qualitative overview of the practice of Islamic finance and the historical roots that have defined its modes of operation’.
This book provides an overview of the practice of Islamic finance and the historical roots that define its modes of operation. The focus of the book is analytical and forward-looking. It shows that Islamic finance exists mainly as a form of rent-seeking legal-arbitrage. In every aspect of finance – from personal loans to investment banking, and from market structure to corporate governance – Islamic finance aims to replicate in Islamic forms the substantive functions of contemporary financial instruments, markets, and institutions. By attempting to replicate the substance of contemporary financial practice using pre-modern contract forms, Islamic finance has arguably failed to serve the objectives of Islamic law. This book proposes refocusing Islamic finance on substance rather than form. This approach would entail abandoning the paradigm of ‘Islamization’ of every financial practice. It would also entail reorienting the brand-name of Islamic finance to emphasize issues of community banking, micro-finance, and socially responsible investment.
Accessible analytical exposition by internationally renowned author on Islamic financial practice and its historical, religious and legal roots • Focuses on economic substance rather than religious and historical forms • Studies religious injunctions as regulatory mechanisms, in the tradition of ‘law and economics’.
About Author:
Mahmoud A. El-Gamal is Professor of Economics and Statistics at Rice University, where he holds the endowed Chair in Islamic Economics, Finance, and Management. Professor El-Gamal has also served in the Middle East Department of the International Monetary Fund (1995–6), and was the first Scholar in Residence on Islamic Finance at the U.S. Department of the Treasury in 2004. He has published extensively in the areas of econometrics, finance, experimental economics, and Islamic law and finance.
Table of Contents
1.Introduction
Finance without Interest?
- Distinguishing Features of Islamic Finance
Prohibition-Driven Finance
Jurists, Shari‘a Boards, and Innovatio
Lawyers and Regulatory Arbitrage
- Islamic Transactions Law as Common Law
Precedents, Analogies, and Nominate Contracts
Tradeoff between Efficiency and Legitimacy
- Limits and Dangers of Shari‘a Arbitrage
Risk of Mispricing
Legal and Regulatory Risks
- Jurisprudence and Arbitrage
2.1 Islamic Law and Jurisprudence
The Canon: Qur’an, Tradition, and Consensus
Juristic Inference (Ijtihad) and Benefit Analysis
2.2 From Classical to Contemporary Jurisprudence
Jurisprudence, Revival, and Codification
Institution of Fatwa and Islamic Finance
2.3 Arbitraging Classical Jurisprudence
Shari‘a-Arbitraging Classical Property Law
Arbitraging Classical Contract Conditions
Arbitrage, Ruses, and Islamic Finance
3.Two Major Prohibitions: Riba and Gharar
3.1 The Prohibition of Riba
Canonical Texts on Riba
Economic Substance of the Prohibition of Riba
3.2 The Prohibition of Gharar
Definition of Gharar
Economic Substance of Prohibition
Insurance and Derivatives
3.3 Bundled vs. Unbundled Credit and Risk
- Sale-Based Islamic Finance
4.1 Basic Rules for Sales
Trust Sales: Murabaha, Tawliya, Waḍi‘a
Currency Exchange (Sarf)
4.2 Same-Item Sale-Repurchase (‘Ina)
Same-Item Trading in ‘Ina and Tawarruq
Custody Sale (Bay‘ Al-‘uhda) and Sukuk Al-ijara
4.3 Cost of Funds: Interest-Rate Benchmarks
Opportunity Cost for Conventional Fund Providers
Viability of Islamic Benchmark Alternatives
5: Derivative-Like Sales: Salam, Istisna‘, and ‘Urbun
5.1 Prepaid Forward Sale (Salam)
Parallel Salam
Conventional and Synthesized Forwards
5.2 Commission to Manufacture (Istisna‘)
5.3 Down-Payment Sale (‘Urbun)
‘Urbun as Call Option
- Leasing, Securitization, and Sukuk
6.1 General Lease Conditions
Flexible-Rate Financing
Subleasing, Repairs, and Insurance Costs
6.2 Asset-Backed Securities
Leasing and Securitization
Receivable Securitization and Sale of Debt
Bundling Asset-Based and Debt-Based Securities: A Paradox
6.3 Asset-Backed Leasing Bonds (Sukuk)
Credit-Rating Issues
Reward Pledges and Gifts Revisited
6.4 Usufruct Sukuk
6.5 Sukuk Al-Salam
- Partnerships and Equity Investment
7.1 Classical Types of Partnership
Silent Partnership: Theoretical Workhorse of Islamic Finance
Valid and Defective Silent Partnerships
7.2 Common-Stock Ownership
“Islamic Screens” and Their Shortcomings
Cleansing Returns
Positive Screens and the Islamic Brand Name
8.Islamic Financial Institutions
8.1 Banking and Islamic Banking
Theoretical Structure: Two-Tier Silent Partnership
Deposits vs. Loans: Trust and Guaranty
8.2 Insurance and Takaful
8.3 Two Sides of the Two Debates
Shari‘a Arbitrage vs. Islamic Prudential Regulation
8.4 Generic Agency Characterization of Financial Institutio
- Governance and Regulatory Solutions in Mutuality
9.1 Rent-Seeking Shari‘a Arbitrage and Absence of Mutuality
Potential for Mutuality in Islamic Banking
Need for Mutuality in Takaful
9.2 A Call for Mutuality in Banking and Insurance
Mutuality in Banking
Mutuality in Insurance
- Beyond Shari‘a Arbitrage
10.1 Shari‘a Arbitrage and Criminal Finance
10.2 Shari‘a Arbitrage at the Limit
Benchmarking ad Absurdum
Hedge-Fund Instruments – Shari‘a-Arbitrage Style
10.3 Self-Destructiveness of Shari‘a Arbitrage
Declining Shari‘a-Arbitrage Profit Margins
Dilution of the “Islamic” Brand Name
10.4 Toward a New Islamic Finance Identity
Macroeconomic Substance: Privatization Sukuk
Mosque-Based Network of Financial Mutuals
Positive Screens, Ethical Investment
Bibliographic Information
Title: Islamic Finance: Law, Economics, and Practice
Author: Mahmoud El-Gamal
Publisher: Cambridge University Press
Language: English
Length: 240 pages
ISBN: 9780521741262
Pub. Date: February 2009
