Shariah’s Black Box

Understood in its proper context then, anything deemed Shariah-compliant by generally recognized Islamic legal authorities must first and foremost be within the gestalt of Shariah. It is not enough, according to Shariah, that a Muslim conducts his own affairs and business according to some narrow definition of “Islamic ethical business practices.” For a Shariah-adherent Muslim to conduct his business and financial affairs properly, he must not knowingly promote through his business dealings any forbidden action or violation of a fundamental precept of Shariah or the legal rulings promulgated thereunder. This is what the scholars mean when they describe Shariah as “holistic” or a fully integrated religious, moral, and legal code.[69]

Thus, an interest-free and non-speculative commercial transaction which complies with Shariah dictates in these strictly financial and economic areas might nonetheless be forbidden because the subject matter of the business (i.e., the manufacture or sale of alcohol) is forbidden. This would be the case even though the Muslim is neither consuming the alcohol he manufacturers nor selling it to other Muslims. Similarly, leasing a building to a restaurant or bar which serves forbidden foods such as pork and alcoholic beverages, even though no Muslims frequent the establishment, would nonetheless be forbidden because pork products and alcohol are forbidden by Shariah independent of its economic or financial implications. Finally, leasing a building to a church consisting wholly of non-Muslims would also violate the dictates of Shariah because Christian worship and theological doctrine violate several tenets of Shariah.[70]

In other words, SCF is not about just finance, economics, or business ethics. To be Shariah-compliant in financial matters means to be Shariah-compliant in theological, moral, and political matters as well. From a legal or jurisprudential analytical framework, there is no Shariah sub-code or segregated legal doctrine applicable only to financial matters per se. To be sure, there are specific Shariah precepts relating to interest and uncertainty and the legal decisions promulgated in accordance with those precepts. But these Shariah precepts and the authoritative legal rulings flowing from them are not divisible or segregable from the rest of Shariah and its jurisprudence.

Thus, Islamic legal rulings on apostates, holy war (Jihad), or forbidden sexual relations, are no less relevant to SCF than rulings on forbidden interest.[71]

It has been the duty of the Shariah legal scholars over the ages to understand these precepts and to apply them to new and changing circumstances. The degree to which individual Muslims or the political powers ruling over them have adhered to Shariah as determined by the generally accepted authoritative Islamic jurists has varied tremendously. It can be said with some historical confidence that Shariah has been honored more in the breach than in its observance.[72] But the breaches have not diminished the absolute authority of Shariah and its jurisprudence, as articulated by Islamic legal scholars and the institutions they have established over the past 1200 years, to define the legal limits of permitted and proscribed behavior among the hundreds of millions of Muslims worldwide who consider Shariah a way of life, as much religion and moral guide as civil and criminal legal code.[73]

About David Yerushalmi

Mr. Yerushalmi is a lawyer specializing in litigation and risk analysis, especially as it relates to geo-strategic policy, national security, international business relations, securities law, disclosure and due diligence requirements for domestic and international concerns. David Yerushalmi has been involved in international legal and constitutional matters for over 25 years. David Yerushalmi is today considered an expert on Islamic law and its intersection with Islamic terrorism and national security. In this capacity, he has published widely on the subject including the principle critical scholarship on Shariah-compliant finance published in the Utah Law Review (2008, Issue 3). This work and the empirical investigation known as the Mapping Shariah project in America was the focus of a recent monograph published by the McCormack Foundation and the Center for Security Policy.