Islamic Finance: Law, Economics, and Practice

by
Edition: 1st
Format: Paperback
Pub. Date: 2008-11-24
Publisher(s): Cambridge University Press
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Summary

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.

Author Biography

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 (1995-96) 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

List of Illustrationsp. x
Prefacep. xi
Glossary and Transliterationp. xv
Introductionp. 1
Finance without Interest?p. 2
Distinguishing Features of Islamic Financep. 7
Prohibition-Driven Financep. 8
Jurists, Shari'a Boards, and Innovationp. 11
Lawyers and Regulatory Arbitragep. 13
Islamic Transactions Law as Common Lawp. 15
Precedents, Analogies, and Nominate Contractsp. 17
Tradeoff between Efficiency and Legitimacyp. 20
Limits and Dangers of Shari'a Arbitragep. 21
Risk of Mispricingp. 22
Legal and Regulatory Risksp. 23
Jurisprudence and Arbitragep. 26
Islamic Law and Jurisprudencep. 27
The Canon: Qur'an, Tradition, and Consensusp. 27
Juristic Inference (Ijtihad) and Benefit Analysisp. 28
From Classical to Contemporary Jurisprudencep. 30
Jurisprudence, Revival, and Codificationp. 31
Institution of Fatwa and Islamic Financep. 32
Arbitraging Classical Jurisprudencep. 35
Shari'a-Arbitraging Classical Property Lawp. 36
Arbitraging Classical Contract Conditionsp. 42
Arbitrage, Ruses, and Islamic Financep. 44
Two Major Prohibitions: Riba and Ghararp. 46
The Prohibition of Ribap. 49
Canonical Texts on Ribap. 49
Economic Substance of the Prohibition of Ribap. 52
The Prohibition of Ghararp. 58
Definition of Ghararp. 59
Economic Substance of Prohibitionp. 60
Insurance and Derivativesp. 61
Bundled vs. Unbundled Credit and Riskp. 62
Sale-Based Islamic Financep. 64
Basic Rules for Salesp. 65
Trust Sales: Murabaha, Tawliya, Wadi'ap. 67
Currency Exchange (Sarf)p. 68
Same-Item Sale-Repurchase ('Ina)p. 70
Same-Item Trading in 'Ina and Tawarruqp. 70
Custody Sale (Bay' Al-'uhda) and Sukuk Al-ijarap. 73
Cost of Funds: Interest-Rate Benchmarksp. 74
Opportunity Cost for Conventional Fund Providersp. 75
Viability of Islamic Benchmark Alternativesp. 77
Derivative-Like Sales: Salam, Istisna', and 'Urbunp. 81
Prepaid Forward Sale (Salam)p. 81
Parallel Salamp. 83
Conventional and Synthesized Forwardsp. 86
Commission to Manufacture (Istisna')p. 90
Down-Payment Sale ('Urbun)p. 91
'Urbun as Call Optionp. 92
Leasing, Securitization, and Sukukp. 97
General Lease Conditionsp. 97
Flexible-Rate Financingp. 100
Subleasing, Repairs, and Insurance Costsp. 100
Asset-Backed Securitiesp. 102
Leasing and Securitizationp. 102
Receivable Securitization and Sale of Debtp. 104
Bundling Asset-Based and Debt-Based Securities: A Paradoxp. 106
Asset-Backed Leasing Bonds (Sukuk)p. 107
Credit-Rating Issuesp. 108
Reward Pledges and Gifts Revisitedp. 110
Usufruct Sukukp. 113
Sukuk Al-Salamp. 114
Partnerships and Equity Investmentp. 117
Classical Types of Partnershipp. 117
Silent Partnership: Theoretical Workhorse of Islamic Financep. 120
Valid and Defective Silent Partnershipsp. 122
Common-Stock Ownershipp. 123
"Islamic Screens" and Their Shortcomingsp. 125
Cleansing Returnsp. 133
Positive Screens and the Islamic Brand Namep. 134
Islamic Financial Institutionsp. 135
Banking and Islamic Bankingp. 137
Theoretical Structure: Two-Tier Silent Partnershipp. 138
Deposits vs. Loans: Trust and Guarantyp. 144
Insurance and Takafulp. 147
Two Sides of the Two Debatesp. 151
Shari'a Arbitrage vs. Islamic Prudential Regulationp. 152
Generic Agency Characterization of Financial Institutionsp. 153
Governance and Regulatory Solutions in Mutualityp. 162
Rent-Seeking Shari'a Arbitrage and Absence of Mutualityp. 163
Potential for Mutuality in Islamic Bankingp. 166
Need for Mutuality in Takafulp. 170
A Call for Mutuality in Banking and Insurancep. 171
Mutuality in Bankingp. 172
Mutuality in Insurancep. 173
Beyond Shari'a Arbitragep. 175
Shari'a Arbitrage and Criminal Financep. 176
Shari'a Arbitrage at the Limitp. 177
Benchmarking ad Absurdump. 178
Hedge-Fund Instruments - Shari'a-Arbitrage Stylep. 180
Self-Destructiveness of Shari'a Arbitragep. 181
Declining Shari'a-Arbitrage Profit Marginsp. 182
Dilution of the "Islamic" Brand Namep. 183
Toward a New Islamic Finance Identityp. 184
Macroeconomic Substance: Privatization Sukukp. 185
Mosque-Based Network of Financial Mutualsp. 186
Positive Screens, Ethical Investmentp. 188
Conclusionp. 190
Notesp. 193
Bibliographyp. 213
Indexp. 219
Table of Contents provided by Ingram. All Rights Reserved.

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