Islamic Finance and the Shari'ah

This book is about how Islamic finance is conducted in contemporary times. It is also about change and how change occurs in two areas. The first area is change in a body of law, both generally and specifically with respect to Islamic Shari ah in the areas of commerce and finance. The second area is Islamic finance. Change in the Shari ah and in Islamic finance are intimately and inextricably related: the Shari ah defines and constrains change in Islamic finance. Legal change necessarily involves consideration of the interpretive modalities that are employed in effecting that legal change, and interpretive modalities in Islamic finance are also considered. The book is divided into four parts. Part I outlines the context and provides background for later discussions. Part II introduces the Shari ah and its interpretation. Part III discusses a specific fatwa issued to Dow Jones in 1998 in respect of equity investing and equity indices (the Dow Jones Fatwa), its sequelae, and murabaha transactions. And Part IV addresses issues pertaining to and criticisms of Islamic finance. Part I describes the objectives and organization of the book, provides a short history of modern Islamic finance, and sets forth a categorized summary of the issues and criticisms raised by various critics. The discussion of Shari ah matters in Part II begins with a summary of the nature of the Shari ah (Islamic law) as applied in Islamic finance. This is followed by a detailed description of the Shari ah scholars and Shari ah boards that interpret and apply Islamic law in the field of Islamic finance. Topics considered include the qualifications of scholars, the nature and structure of Shari ah boards and how they are comprised and operate, and the roles and functions of Shari ah boards. The final chapter in this Part discusses the fatwa (legal opinion) that implements Islamic law in the transactional, operational entity and standard-setting context. Part III provides detailed discussions of the Dow Jones Fatwa, its equity investment tests, permissible and impermissible equity instruments, permissible and impermissible business activities, financial screens for impermissible interest income, and other important principles. In particular, the discussion focuses on the principles of "permissible variance" (or "permissible impurity") and "purification" that have been instrumental in the development and growth of Islamic finance. Succeeding chapters in this Part trace how the permissible variance principles have evolved and expanded in areas such as equity, private equity and real estate investing, and the financing of those activities, and in project and infrastructure finance. Six areas of evolution and expansion are considered. These include (1) modification of the initial tests, (2) new equity investing tests, (3) permissible and impermissible business activities in different areas of practice and the variations in impurity that are permitted in those areas, (4) the most commonly used structures in modern Islamic finance (the lease or ijara and the murabaha or cost-plus sale), and) (5) when and how purification (largely by donation to charity) are effected. The final group of chapters, in Part IV, discuss the various issues and criticisms in detail. Topics include (i) the amount of discretion afforded Shari ah scholars, (ii) the intentions of different transactional parties in Islamic finance transactions, (iii) the degree of formalism in application of interpretive modalities, (iv) complexities and transaction costs (both absolutely and relative to corresponding conventional transactions), (v) social justice and policy issues, and (vi) the application of interpretative modalities and their relationship to different jurisprudential theories of legal change. The book includes an extensive bibliography and index. For further information, please see http: //www.islamicfinanceinpractice.com