THE HOTTEST TOPIC in the
Islamic intellectual world in the West is whether the financial
meltdown and Wall Street collapse of the
last year would not have happened if we had an Islamic system of finance
instead of 20th Century capitalism. The answer is
clearly yes, but for two mutually exclusive reasons. On the one hand, it is
clear that, properly employed, Quranic restrictions would have prevented the
excesses of leverage and gambling on derivatives that led to the current
collapse; on the other hand, however, those same restrictions would have
prevented our Western economies from reaching anywhere near the levels of size
and complexity we enjoy that make it possible for such enormous problems to
occur.
As a threshold matter, it is
important to remember that Islamic law is at once ancient and modern. From its
origins in the Quran and the words and acts of
the Prophet Mohammed in the early 7th century, up
until around the end of the 1st Millennium, it
was unquestionably the most advanced body of law, as well as civilization in
general, west of China
(other than, perhaps, Byzantium).
However, for theological reasons, it then entered a nearly 1,000-year-long
period of constricted growth that only really ended for the Shi’a in the 19th Century and for the Sunni much more recently.
During that period, the Dark
Ages ended in the West and the Renaissance and the Enlightenment ushered in not
only nation-state democracy, but also modern capitalism. The real economic
evolution started when Western merchant banking
developed in Italy, in the 13th Century. In fact, our word “bank” comes from the
benches (bancas) that the Medicis and others set
up starting in the 14th Century. As Western
financing vehicles advanced from these early compagnias to unincorporated
associations, the evolution of the entity theory of partnership law and then
incorporated entities, and finally, in the 20th Century, limited-liability
structures, in Islam there was very little movement from the traditional forms
developed in the 8th and 9th centuries.
Islamic finance is therefore
still imbued with the principles of the 7th Century Quran. The most important
is (whether or not honored in the breach) the concept of “social justice” or
“social responsibility.” This means that relationships in the economic sphere
must be based on the same ideals of fairness, honesty and charity that govern a
person’s religious obligations as well as his relationships with other people.
The most famous post-Enlightenment Western expression of this might be Marx’s
“from each according to his ability, to each according to his need.” But unlike
Marx and Engels, Mohammed and his disciples had nothing against profit being
retained by enterprise owners. What they did forbid was (and therefore is) riba
and gharar — interest and excess or unquantifiable risk.
For 1,000 years, Muslim
scholars virtually unanimously interpreted that the prohibition on riba means
that both charging and paying interest is a forbidden activity (haram). And
since unlike the Jewish and Christian Bibles, every word of the Quran is the literal word of God, it is a divine edict, not a
statutory or constitutional one. Therefore, finding safe ways around an express
prohibition like riba is not a simple matter. Gharar is less precisely defined,
and therefore more flexible. But some of the major aspects of modern finance
that are covered by gharar’s prohibitions are gambling, promises to make loans
or investments in the future based on conditions that are not certain to occur,
pledges of currently non-existent collateral and property, casualty and life
insurance.
One result of these
prohibitions is that Islamic banking has
developed very differently from Western models. First of all, they cannot
finance in any way enterprises engaged in prohibited activities, such as
alcohol, gambling and pork production, or any business predicated on the paying
or charging of interest. Nevertheless, as today’s Islamic societies discovered
that capital formation is needed to expand their
economies, they had to confront the issues successfully navigated by Western
capitalism 700 years before: the difference between “usury” and “interest.”
The capitalist solution was
based on the realization that there are two aspects of interest: the risk value
of money (the risk that the borrower will not repay it in full or at all) and
the time value of money (ability to generate
profits using the money over the time it is in the hands of the borrower).
While the former, arguably, can be associated with social justice in that it
involves an important aspect of trusting one’s borrower’s promises, the latter
clearly does not.
In 1980, when I drafted the
model loan documents for Saudi American Bank, basically all I had to do was
change the word “interest” to “commission” throughout the documents. That would
not work today. The level and scope of Islamic finance and banking has exploded
exponentially. Yet, while there has been tremendous creative efforts made to
find ways to use the traditional, 1,000-year-old vehicles (basically different
forms of partnership, including mutual insurance pools [takaful]), the basic
limitations of riba and gharar remain major obstacles to the development of
Islamic finance within the current international finance
system. And despite those efforts, including the hermeneutical
investigations of ancient Arabic to re-translate those terms, there is nothing
approaching a consensus on the horizon to change the traditional rules.
Legislating greed out of
profit-seeking would certainly be a major blow to Wall Street. However, it
would also be a major blow to entrepreneurship, as well as require a tectonic
shift in human nature. And even then, there is still the issue of the failure
to take into account the mathematical imperatives of the time value of loaned
and invested capital. Without that, you can have equity
investments, which derive profit from taking the speculative risk that
the investment itself will increase in value, but you cannot have secured or
unsecured lending.
So Islamic finance and banking
remove one of the essential underpinnings of wide-scale capital
formation — risk-averse capital. Their adoption would therefore end not
only over-leveraged markets that lead to bursting bubbles but most of the rest
of those markets as well.
Robert E. Michael is an
international insolvency and finance lawyer who has created and led the Islamic
law program at the New York City Bar Association.
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