Shariah’s Black Box

[31] As noted, the Shariah authorities developed different schools of legal interpretation. These schools are called maddhahib (or maddhab in the singular form). Early in their development, there were many schisms and new schools but over time, the main body of legal scholarship and almost all Shariah authorities have long come to recognize only four extant schools among Sunni Muslims and one dominant school (some cite two) among Shi’a Muslims. While there are important jurisprudential and theological differences between the Sunni and Shi’a, see supra note 29, and indeed between the schools themselves within the respective Sunni and Sh’ia traditions, the specific rulings among all schools on the fundamental issues regarding the purposes of Shariah, the point of the individual Muslim’s life, and the integrity and unity of the Muslim nation as a whole and the methodologies to achieve those ends are remarkably consistent, see generally Coughlin, supra note 24.

[32] Furu’ is the Arabic word most often associated with positive law or the particular rulings in any given case. See Vogel & Hayes, supra note 18, at 23-24; see also M. Cherif Bassiouni & Gamal M. Badr, The Shariah: Sources, Interpretation, and Rule-Making, 1 UCLA J. Islamic & Near E.L. 135 (2002). For a discussion of furu’ and usul al-fiqh, see Wael B. Hallaq, Usul Al-Fiqh: Beyond Tradition, 3:2 J. Islamic Stud. 172-202 (1992), reprinted in  [needs to be more specific here] Law and Legal Theory.

[33] See Qur’an 45:18. But see Qur’an 5:48, where a variation of the word appears and has the meaning of the ‘proper way’; while some might argue that the word appears in yet other variations, the first of these two are the typical verses cited where the word is used in the sense of a legally proper path.

[34] The legal verses of the Qur’an are typically broken down into those verses dealing with religious rites and worship (ibadat) and those dealing with civil relations including commerce, political life, and the Law of Jihad (mu’amalat). Kamali, supra note 24, at 26. What is confusing to many is that most academics writing on the subject of SCF define mu’amalat as civil or commercial relations giving the impression that there is in fact some sub-code of strictly commercial matters devoid of broader implications. See, e.g., Yusuf Talal DeLorenzo & Michael J.T. McMillen, Law and Islamic Finance: An Interactive Analysis, in Islamic Finance, supra note 3, at 142. But cf. Vogel & Hayes, supra note 18, at 301, where the “Glossary” defines mu’amalat as “dealings or transactions among human beings; compare ‘ibādāt.” Thus, while the “glossary” definition is technically correct and properly juxtaposes mu’amalat against ibadat, the reader who would need such a glossary is not likely to understand that mu’amalat is as much the Law of Jihad as it is commercial dealings.

[35] See generally supra note 18. For the “socio-economic” impetus for SCF, see Walid S. Hegazy, Symposium: Islamic Business And Commercial Law: Contemporary Islamic Finance: From Socioeconomic Idealism To Pure Legalism, 7 Chi. J. Int’l L. 581 (2007).

[36] See generally DeLorenzo & McMillen, supra note 34, at 132-197.

[37] See Muslim-Investor.com, Resources — Education/Curricula in Islamic Finance, Education and Banking, available at http://muslim-investor.com/mi/education.phtml (last visited Jan. 25, 2008) (listing university departments).

[38] See generally Warde, supra note 4, who theorizes of a “First and Second Aggiornamento” to suggest a first movement driven by a centralization of power and influence flowing from Arab oil wealth and a second movement driven by decentralized social, political, and financial constituencies. For a media rendition of the oil wealth-driven industry, see Wayne Arnold, Islamic Banking Rises on Oil Wealth, Drawing Non-Muslims, Int’l Herald Trib., Nov. 22, 2007, available at http://www.iht.com/articles/2007/11/22/business/islamic.php (last visited Jan. 25, 2008).

[39] The first order of business for determining whether a business is Shariah compliant is to make certain that it is not involved in a “vice” industry such as interest-based financing, the pork industry, various forms of the entertainment industry, and gambling. The question for Shariah authorities is how much “involvement” in a prohibited business amounts to a violation of Shariah such that an investor must not invest in that company. The same question applies to a permitted business that might earn interest on deposits or accounts payable and pay interest on debt: How much interest is too much interest? For a discussion of the Shariah authority opinions on this matter by one of the leading Shariah authorities, see Nizam Yaquby, Participation and Trading In Equities of Companies Which Main Business Is Primarily Lawful but Fraught with Some Prohibited Transactions, Address at the Fourth Harvard Islamic Finance Forum, Harvard University (Sept. 30-Oct 1, 2000), available at http://www.djindexes.com/mdsidx/downloads/yaquby.pdf (last visited Jan. 25, 2008).

[40] See DeLorenzo, supra note 22.