Religion and Contract Law in Islam: From Medieval Trade to Global Finance

Cover
Half Title
Series
Title
Copyright
Dedication
Contents
Figures and diagrams
Preface
Acknowledgements
Introduction: ways of seeing an Arab Girl
	From archetypes to corpora iuris
	Representations, meaning, and signifying practices: the riddle of the Sphinx
	Imaginative geographies of Orientalism: The Almeh and the city of the ‘aqd
	Looking at normative worlds; listening to the language of Islam
1 Expelling the merchants from the Temple: methodology and the contents of this book
	1.1. One Ring, some daemons, and Jesus Christ: the non-identity (1M) of law and religion
	1.2. The problem at the heart of this book
	1.3. Some conceptual help from three companions
		1.3.1. How to compare? Non-identity, dialectic, and transformative praxis (Bhaskar)
		1.3.2. What is Islam? Unity as plurality in the Muslim world (Ahmed)
		1.3.3. How to deal with law-religion in Islam? Visual vs acoustic space (McLuhan)
	1.4. Carrying the One Ring in the practice of trade: revelation, tradition, and reality
2 The revealed Word in translation: the space of law and religion in Islam
	2.1. Babel, languages, and the sacred law of Islam
	2.2. Profanations: religious vs secular in the Temple of Western modernity
	2.3. An absence of religion? Translating the non-identity of dīn as Islamic bíos
	2.4. The revelation of Islam: the Wor(l)d and its understanding
		2.4.1. Translating Šarī‘ah in human life: the normative science of fiqh
		2.4.2. The dictum of the revelation as pre-scribed Law and the uṣūl al-fiqh
		2.4.3. Furū‘ al-fiqh as de-scribed law in a iurisdictio of verdicts
		2.4.4. From the rule (ḥukm) to the right (ḥaqq): an instance of action in the wor(l)d
		2.4.5. Echoing the revelation in an acoustic space: a sacred law without corpus
	2.5. The bridge of Babel: from the negation of fiqh (2E) to the comparison of the ‘aqd
3 Comparing legal traditions: contract law and Muslim fiqh
	3.1. The ‘aqd as a craft of place in the space of Islam
	3.2. A map of the city? The Two Towers and the plural itineraries of the madhāhib
	3.3. ‘Aqd and Islamic dīn
		3.3.1. The rule (ḥukm al-‘aqd), its subject, and its object: from legal capacity (ahliyya) and personality (dhimma) to the duty (wujūb) of the mukallaf
		3.3.2. Religious qualifications (al-aḥkām al-khamsa) and the legal validity of the šar‘ī act, its constitutive (arkān) and conditional (šurūṭ) elements
		3.3.3. At the borders of the city: the act of disposal (taṣarruf) in relation to contractual rights (ḥuqūq al-‘aqd)
	3.4. The role of human will and rationality in the psychological formation of the ‘aqd
		3.4.1. Autonomie de la volonté and the ‘reason’ underlying the contract: ‘illa and sabab in comparison with the civilian cause and the consideration of common law
		3.4.2. Freedom of contract, nominate contracts, and attached stipulations
		3.4.3. Psychological components of the ‘aqd: will (irāda), intention (niyya), animus contrahendi (qaṣd), choice (khiyār), and individual consent (riḍā)
			• Šāfi‘īs and Ḥanafīs: objectivism
			• Mālikīs and Ḥanbalīs: subjectivism
		3.4.4. The vices of consent (duress, ikrāh; fraud, tadlīs; mistake, ghalaṭ), misrepresentation, and the doctrine of al-khiyārāt
	3.5. The construction of the ‘aqd as consensual transfer of properties
		3.5.1. Expression (ṣīghah), verbalism, and the unity of negotiations (majlis al-‘aqd)
		3.5.2. Offer (ījāb) and acceptance (qabūl) in the tarāḍī: what is the nature of the agreement in Muslim fiqh?
		3.5.3. The subject matter (maḥall) of the contract (al-ma‘qūd ‘alayhi): exchanging properties (amwāl), either ‘ayn or dayn, in relation to the dhimma
		3.5.4. The equilibrium of the contract and the doctrines of ribā, maysir, and gharar
			• Ribā
			• Gharar
			• Maysir/Qimār
	3.6. A unity of diversities: fiqh pluralism and the totality (3L) of the ‘aqd as the performance of God’s will
4 Realities of the Muslim world: changing contexts over time
	4.1. Continuity, change, and transformative praxis (4D): fiqh and textual polities
	4.2. Verbal Trade
		4.2.1. Pre-Islamic customs, formalism, and the origins of the ‘aqd
		4.2.2. Verbalism and documentary evidence in Muslim medieval trade
		4.2.3. Legal devices (ḥiyal): contractual theories-into-practices
	4.3. Codified Norm
		4.3.1. The invention of a corpus for Islamic law and the ‘aqd: Western transplants and the codification process in Muslim countries
		4.3.2. Embodying the West: Sanhūrī’s reformulation of sabab and ghalaṭ in the Egyptian Civil Code
	4.4. Typewritten Market
		4.4.1. Global capitalism and the invention of Islamic finance: a new life for the ‘aqd between authenticity and contamination
		4.4.2. The textual polity of Shari‘ah-compliance
		4.4.3. From fiqh legal texts to financial technology
	4.5. Human agency and the urban designs of the ‘aqd
Conclusions: ways of saying the ‘aqd
	Islam, the body of law, and the living text of Šarī‘ah
	The One Ring of law-religion and the return to the Arab Girl (and ourselves)
Glossary of Arabic terms
Index