Copyright (c) 2008 All rights reserved. http://works.bepress.com/haider_ala_hamoudi Recent documents in Haider Ala Hamoudi en-us Thu, 03 Jan 2008 02:04:53 PST 3600 http://works.bepress.com/haider_ala_hamoudi/7 http://works.bepress.com/haider_ala_hamoudi/7 Thu, 04 Oct 2007 07:04:03 PDT Despite its currently conservative character, the modern practice of Islamic finance lies on a bedrock of social, cultural and economic revolution. Examination of these revolutionary origins and their attendant jurisprudential implications reveal much about the schizophrenia plaguing Islamic finance today, of a largely formalist practice repeating the functional aims of the early revolutionaries and falsely understood by substantial portions of the wider Muslim community to be achieving such aims. Though the revolution has not come to pass, some of the comparatively radical functional approaches conceived in the context of the anticipated upheaval, and in particular those of the Iraqi Shi'i jurist Muhammad Baqir al-Sadr, deserve reconsideration and refinement as a means through which to reformulate the entire practice of Islamic finance in a manner that realizes more completely the aspirations of the broader Muslim community in its call for uniquely Islamic forms of human association in Muslim societies. Sadr's revolutionary goals are very much consistent with the rhetoric that proponents of Islamic finance and economics use to justify their practice. Yet Sadr, unlike his contemporaries, developed a functional theory of jurisprudence that relied on particular, acknowledged ideological understandings of foundational text that was intended precisely to achieve the articulated goals. Moreover, Sadr relied on a loose network of Shi'i jurists, largely based in Najaf, Iraq, known as the marja'iyya, to provide a more objective form of legitimacy to his ideas. Under Shi'i doctrine, the marja'iyya is responsible under Shi'i doctrine for deriving the rules of the shari'a. To Sadr, the marja'iyya as an institution could establish legitimate, neutral and definable bounds to interpretation that distinguish it from purely individualized, subjective political argument. These parameters would undoubtedly reflect ever changing ideological and ethical understandings of the foundational texts of Revelation. Nevertheless, within that framework, objective, disciplining rules would emerge to constrain individualized subjectivity on the part of any single jurist engaged in the process of interpretation. Some of the particularities of Sadr's economic and jurisprudential philosophy are grounded in his Shi'i context, but the broader lesson to be learned continues to resonate. While the dreams of economic revolution may have long faded, the absolute necessity of a jurisprudential revolution has not. Sadr's idea of a transformed and transforming jurisprudence, bounded by objective and neutral rules on interpretive process, imposed through the consensus of an interpretive community responsible for redefining the foundational texts from time to time, is instrumental to the development of a sensible and functional Islamic system based entirely in Islamic doctrine and responsive to the needs of the community. Haider Ala Hamoudi Religion Comparative Law http://works.bepress.com/haider_ala_hamoudi/6 http://works.bepress.com/haider_ala_hamoudi/6 Thu, 04 Oct 2007 06:48:42 PDT Though it is advertised and promoted as the bulwark of an alternative economic system based on populist Muslim notions of social justice and fairness, Islamic finance as a practice has failed to meet these objectives. The causes of that failure and the question of whether alternative approaches are possible are the subject of this Article.The failure of Islamic finance to provide that which it promotes is the direct consequence of the application of an Islamic logic driven interpretive system through which rules are derived, which its adherents claim was formalized and systematized by the early jurist Muhammad Ibn Idris Al-Shafi'i. The system bears remarkable resemblance to the jurisprudential theories of Christopher Columbus Langdell in that particular cases (the reports of Muhammad, or hadith) are selected and then expanded into fundamental principles, or at least fundamental rules, through a doctrine known as qiyas, or analogical reasoning. The result is a financial system characterized by an incoherent web of rules, convenient and specific blindness respecting those rules in particular contexts, and deceptive and obfuscatory measures intended to lend the entire affair a patina of legitimacy as Islamic. Social justice and fairness are not significant components of the system. A principled alternative interpretive system, however, does seem possible so long as it remains within particular parameters, among them faithful adherence to Qur'anic verse, substantial respect for the hadith and sufficient systematization and methodological rigor to avoid what some Islamic jurists call subjectivity, or lack of interpretive control. Specifically, the Article engages and expands upon the ideas of Abdul Razzaq Sanhuri and Muhammad Baqir al-Sadr as potential avenues for reform that lie within these parameters. Haider Ala Hamoudi Religion Comparative Law http://works.bepress.com/haider_ala_hamoudi/4 http://works.bepress.com/haider_ala_hamoudi/4 Wed, 03 Oct 2007 12:16:31 PDT Haider Ala Hamoudi Religion International Law Comparative Law Middle Eastern Law http://works.bepress.com/haider_ala_hamoudi/3 http://works.bepress.com/haider_ala_hamoudi/3 Wed, 03 Oct 2007 12:07:24 PDT Haider Ala Hamoudi Religion Comparative Law http://works.bepress.com/haider_ala_hamoudi/2 http://works.bepress.com/haider_ala_hamoudi/2 Wed, 03 Oct 2007 12:01:02 PDT Haider Ala Hamoudi Comparative Law http://works.bepress.com/haider_ala_hamoudi/1 http://works.bepress.com/haider_ala_hamoudi/1 Wed, 03 Oct 2007 11:42:44 PDT The central flaw in the current approach to shari'a in the American legal academy is the reliance on the false assumption that contemporary Islamic rules are derived from classical doctrine. This has led both admirers and detractors of the manner in which shari'a is studied to focus their energies on obsolete medieval rules that bear no relationship to the manner in which modern Muslims approach shari'a.The reality is that given the structural pluralism of the rules of the classical era, there is no sensible way that modern rules could be derived from classical doctrine, either in letter or in spirit, and all efforts to do so have largely failed. As with all historical approaches to the law, the past becomes no more than an invention of the present, a means to validate an approach rather than any true reflection of the practices and norms of a previous era. Thus, modern Islamic rules are not a resurrection of classical era rules, but rather are largely the product of mediation among competing influences in Muslim society. Within and even beyond Islamic finance, the two major influences are, on the one hand, resistance, clothed in Islamic rhetoric, against the dominant global economic and political order in order to create a separate Muslim sphere within which the Muslim polity may operate, and on the other, the need to engage the broader global order, commercially and politically, in order to restore some level of political and economic power to the Muslim world. A proper study of influences of this sort that have led large numbers of Muslims to adopt particular shari'a positions on economics, finance, war and numerous other realms is absolutely vital in the post 9/11 era in order to understand and engage substantial, important segments of the Muslim community in their call for a reinvigoration of the shari'a. Haider Ala Hamoudi Comparative Law International Law Religion