In the Name of God: managing risk in Islamic finance

IANUS Diritto e Finanza Rivista di studi giuridici ISSN: 1974-9805 https://www.rivistaianus.it n. 26 - dicembre 2022 IN THE NAME OF GOD: MANAGING RISK IN ISLAMIC FINANCE Valentino Cattelan http IANUS n. 26-2022 ISSN 1974-9805 IN THE NAME OF GOD: MANAGING RISK IN ISLAMIC FINANCE1 Valentino Cattelan Lecturer in Law, Birmingham City University In Against the gods: the remarkable story of risk (1996), Peter L. Bernstein illustra come il saper dominare il rischio abbia guidato la moderna società occidentale nel convertire «il futuro da nemico in opportunità», laddove il rischio vine quantificato, misurato, e gestito per mitigare i pericoli dell’inatteso, e dove procedure di risk-taking, -transfer e pooling sono divenute esse stesse fonti di legittimo profitto. Commentando il lavoro di Bernstein nel passaggio dal ‘rischio’ occidentale alla nozione araba di ‫ ﺭﺯﻕ‬rizq, ‘il sostenimento (divino)’, questo articolo si riferisce all’azzardo umano, o fortuna, in arabo ‫ ﺯﻫﺭ‬zahr, i ‘dadi’ delle future chances, attraverso una prospettiva comparativa ed interculturale. Più precisamente, l’articolo intende mostrare come specifiche assunzioni antropologiche conducano ad una teoria ed una pratica alternative della gestione del rischio in un mercato la cui peculiarità sta nell’operare non ‘contro’ ma ‘in Nome di Dio’: vale a dire, il mercato della finanza islamica. In Against the gods: the remarkable story of risk (1996), Peter L. Bernstein illustrates how the mastery of risk has driven modern Western society into converting «the future from an enemy into an opportunity», where risk is quantified, measured, and managed to mitigate the perils of the unexpected, and where risk-taking, -transfer and -pooling have become per se sources of legitimate profit. Commenting on Bernstein’s work while moving from the Western ‘risk’ to the Arabic ‫ ﺭﺯﻕ‬rizq, ‘(God’s) sustenance’, this article looks at human hazard, ‫ ﺯﻫﺭ‬zahr, the ‘dice’ of future chances, through a comparative and inter-cultural perspective. More precisely, it aims to show how specific anthropological assumptions result in an alternative theory and practice of risk management in a market whose peculiarity is to operate not ‘against’ but ‘in the Name of God’: namely, the market of Islamic finance. Summary: 1. Gods, men and the (un)expected: from Bernstein’s risk to the Arabic rizq (‫)ﺭﺯﻕ‬ 2. Islamic finance, Muslim anthropology, and legitimate profit: al-kharaj bi-l-daman 3. Conceiving and managing risk in God’s creation: the logic of Islamic finance 4. Conclusions: another, remarkable, story of risk?  Saggio sottoposto a double-blind peer review. This article remained for a long time in the preliminary format of working paper (CATTELAN, In the Name of God: managing risk in Islamic finance, in Eabh Working Papers Series, 14-07, 2014; available online at http://www.eabh.info/publications/eabh-papers). I thank the editorial committee of IANUS for the opportunity to give it appropriate collocation as article in a peer-reviewed journal. Transliteration note: please consider that in the transliteration from Arabic into English graphical forms have been simplified (e.g. riba instead of ribā; Shari‘ah in the place of šarī‘ah; daman instead of ḍamān; haqq in the place of ḥaqq; and so on). Quotations of the Qur’an are taken from YUSUF ALI, An English interpretation of the Holy Qur’an with full Arabic text, Lahore, 1975. The sura is specified in Roman numbers; the ayat in Arab numbers (e.g. Q. IX:51, 51th ayat of the 9th sura). 1 149 VALENTINO CATTELAN «The word “risk” derives from the early Italian risicare, which means “to dare”. In this sense, risk is a choice rather than a fate. The actions we dare to take, which depend on how free we are to make choices, are what the story of risk is all about. And that story helps define what it means to be a human being»2. 1. Gods, men and the (un)expected: from Bernstein’s risk to the Arabic rizq (‫)ﺭﺯﻕ‬ Peter L. Bernstein’s extraordinary book Against the gods: the remarkable story of risk3 has been able to popularize and make accessible to the general public the intricacy of a concept, that, as he remarks, «touches on the most profound aspects of psychology, mathematics, statistics, and history» (p. ix). The volume itself won the Edwin G. Booz Price for the most insightful, innovative management book in 1996, as well as the Clarence Arthur Kelp/Elizur Wright Memorial Award in 1998; not really unexpectedly, considering this success, Against the gods has sold over 500,000 copies worldwide. Indeed, dealing with the (un)expected is what risk management is all about: something that Bernstein defines as that ‘revolutionary idea’ shaping modernity, where, far from being an antagonist, as the unpredictable whim of gods or the mysterious fate, the future has become an opportunity. Moving away from the fear of the unexpected, his volume tells us about «[…] the story of a group of thinkers whose remarkable vision revealed how to put the future at the service of the present… [converting] risk-taking into one of the prime catalysts that drives modern Western society. Like Prometheus, they defied the gods and probed that darkness in search of the light that converted the future from an enemy into an opportunity. The transformation in attitudes towards risk management unleashed by their achievements has channelled the human passion for games and wagering into economic growth, improved quality of life, and technological progress» 4. From Fibonacci’s Liber Abaci (1202), Cardano’s Liber de Ludo Aleae (1525) and Galileo’s Sopra le scoperte dei dadi (1623), the astonishing story of risk developed in Western society through the laws of probability framed by Pascal, Fermat, and Chevalier de Méré 5, and the science of statistics of Graunt, Petty, and Halley, fostering the development of insurance as a commercial concept in the eighteenth century6. It was in that time, with Bernoulli’s paper on Specimen Theoriae Novae de Mensura Sortis (1731), that risk-taking was related not only to objective facts but also to a «subjective view about the desirability of what is to 2 BERNSTEIN, Against the gods: the remarkable story of risk, New York, 1996, 8. See previous note. 4 ID., 1. 5 ID., 57-72. 6 ID., 92. 3 150 IANUS n. 26-2022 ISSN 1974-9805 be gained, or lost, by the decision» 7. From this perspective, if «Cardano, Pascal, and Fermat provided a method for figuring the risks in each throw of the dice, … Bernoulli introduces us to the risk-taker - the player who chooses how much to bet or whether to bet at all. While probability theory sets up the choices, Bernoulli defines the motivations of the person who does the choosing. This is an entirely new area of study and body of theory. Bernoulli laid the intellectual groun dwork for much of what was to follow, not just in economics, but in theories about how people make decisions and choices in every aspect of life» 8. From that time onwards, through Gauss’s normal distribution9, Poincaré’s study of information/decision-making and Bachelier’s analysis of speculation 10, the theory of risk has further advanced through Arrow 11, Knight and Keynes’s notion of risk as ‘measurable uncertainty’ 12. An uncertainty whose source can be found in others’ intentions, as explained by Von Neumann, Morgenstern and Nash’s game theory13; and whose measure has led financial theory to well-known concepts such as portfolio selection, diversification, the capital asset pricing model (by Markowitz and Sharpe), the Black and Scholes formula, and to prospect theory in behavioural economics (by Kahneman and Tversky) 14. Of course, this very concise introduction to Bernstein’s book does not even distantly mirror the richness of its contents: the interested reader will find in Against the gods, and its broad bibliography, much better satisfaction of his intellectual enquiries. But, at least superficially, this summary highlights how centuries of extraordinary intellectual elaboration in Western society transformed the future from an antagonist into a product of a (human) present where risk is quantified, measured, and managed to mitigate the perils of the unexpected. Accordingly, within this cultural setting, activities of risk-taking, -transfer and pooling (i.e., banking, investment, insurance, or even gambling, businesses) have become in the West a source per se of legitimate profit, where, in the (extra)ordinary enterprise of risk management, as we know it today, the ‘gods’ are left aside. But from where does the idea of ‘risk’ come from? And how much does it explain about human nature, given that its story, in the end, is all about «[t]he actions we dare to take» and «how free we are to make choices»? If the Latin resecare, resicum, risicum, riscus are the direct precedents for the Italian risicare, meaning ‘to dare’, and risco (from which the current Italian 7 ID., 100. Daniel Bernoulli, in fact, introduced the revolutionary idea that «the value of an item must not be based on its price, but rather on the utility that it yields», which varies from person to person (BERNSTEIN, cit., 99; italics in the original text). 8 ID., 108 (italics in the original text). 9 ID., 136. 10 ID., 200. 11 ID., 204. 12 ID., 219. 13 ID., respectively at 232, 235, and 243. 14 ID., respectively at 260, 304 ff., 270. 151 VALENTINO CATTELAN rischio, the French risque, the English risk, the Spanish riesgo and the German Risiko, all derive), a more ancient etymology of the word ‘risk’, in contrast, remains uncertain. The Latin forms may have derived from the Greek ριζα, meaning ‘root’, ‘stone’, ‘cut of the firm land’, which was also used as a metaphor for a ‘difficulty to avoid in the sea’.15 For the ancient Greeks the uncertainty of survival in the Mediterranean was caused by the whims of gods like Zeus and Poseidon, and the ‘stone’ of the firm land as well as the ‘root’ of a tree were symbolic images of a lifeline, securing the sailors from the perils of the sea. Quite interestingly, the classical Greek ριζα seems to find (at least phonetically) an equivalent in the Arabic rizq (‫)ﺭﺯﻕ‬, from which the word ‘risk’ may derive, too: the term may have been absorbed by ancient pre-Islam Arabic from Greek, via Mediterranean contacts, or vice-versa. The rich legacy of such contacts is also witnessed by the word ‘hazard’, that moved into English from the French hasard and the Spanish azar, both (certainly) coming from the Arabic ‫ ﺯﻫﺮ‬zahr, meaning ‘dice’, thus the chance of human luck. 16 But, apart from this digression on probable linguistic transmissions through the Mediterranean, if rizq on the one side expresses the idea of ‘fortune’, ‘profit’, ‘gain’, ‘blessing’ (thus, safety from the perils of life, as in the etymology of ριζα and later ‘risk’), on the other side, and quiet remarkably, this fortune is depicted and conceived in Arabic language in the particular sense of «a sustenance that is given by God for livelihood». 17 Accordingly, the verb razaqa is always used in the sense of ‘God providing somebody with means of subsistence’; ‫ ﺍﻟﺮﺯﺍ‬ar-razzaq, ‘the Maintainer’, ‘the Provider’ is one of the ninety-nine attributes of God; and ‫ ﻣﺮﺯﻭﻕ‬marzuq is the ‘person blessed by God’, thus ‘fortunate’, ‘prosperous’, ‘successful’. At a very preliminary glance, therefore, the secular nature embedded in modern Western ‘risk’ stays far apart from the Arabic rizq, where the future and its fortunes are given by God. To the extent to which the phonetic connection between the Greek ριζα and the Arabic rizq may been tentatively suggested and is certainly thought-provoking, it seems to me that their distant meanings may also offer a clue (or at least an intellectual temptation) to broaden Bernstein’s history of risk by adopting a 15 In this sense, for instance, SKJONG, Etymology of risk. Classical Greek origin - Nautical expression - Metaphor for “difficulty to avoid the sea”, 2005, available online at the following address http://research.dnv.com/skj/Papers/etimology-of-risk.pdf. Indeed, it is of interest that «these lexical borrowings happened in the end of the middle-ages, when mentalities woke up and people dared to discover the world. So that from the 16th century on, the term got a benefit meaning, for example in middle-high-German Rysigo … a technical term for business, with the meaning “to dare, to undertake, enterprise, hope for economic success”» (ID.). 16 BERNSTEIN, Against the gods: the remarkable story of risk, cit., 13. Both the Greek ριζα and the Arabic rizq (‫ )ﺭﺯﻕ‬may even find a common Indo-European or Semitic root (a hypothesis of ancient comparative linguistics which is, of course, far beyond my expertise and the aims of this writing). Speaking of risk (and my personal risk-aversion), anyway, I would not put my money neither on ριζα nor ‫ ﺭﺯﻕ‬as the very first origin of the term and its related meaning(s). 17 WEHR, A dictionary of modern written Arabic, ed. by J M. Cowan, IV ed., Wiesbaden, 1994. 152 IANUS n. 26-2022 ISSN 1974-9805 comparative perspective, moving from the Western to the Arab side of the Mediterranean by looking at the hazard, ‫ ﺯﻫﺮ‬zahr, the ‘dice’ of future chances, through an inter-cultural approach. In other terms, does a different anthropology of risk characterize Islam in comparison to the West? Should we tell, in this regard, a story of risk different from Bernstein’s? And, if this diverse story is still to be told, how much may it help us to ‘define what it means to be a human being’ in a Muslim context? Indeed, today the investigation on ριζα/rizq is far from being purely speculative and confined to comparative linguistics or the domain of intellectual conjectures. On the contrary, it can be directly related to the development of a niche of the financial system whose outstanding peculiarity, to Bernstein’s surprise, is to operate not ‘against’ but ‘in the Name of God’: namely, the market of Islamic finance. In this direction, challenging the perils of the Mediterranean in the search for another root of safety from the unexpected (the ancient Greek ριζα), this article dares to look at human fortune in the light of the Arabic rizq, and investigating how a diverse anthropology of risk in Islam may actually result in alternative practices of risk management, as manifested today by Shari‘ah-compliant financial institutions. Thus, the Islamic financial market and its peculiar principles (prohibitions of riba, interest; uncertainty and speculation, gharar; gambling, maysir) will be depicted within an anthropology of time where not only the future, but also the present, are a divine (rather than human) creation, and where, accordingly, risk itself is deeply re-framed both as a concept and as a source of legitimate profit. Indeed, to the extent to which, as we will see, in a reality created directly by God the future remains an economic opportunity (Q. II:275: «Allah has permitted trade»), any legitimate profit follows from man’s responsibility (al-kharaj bi-ldaman) in performing Shari‘ah by participating in the divine creation of the ‘real’ and as an ‘agent’ of the only ‘Actor’. It is this dual canon of ‘participation’ and ‘agency’ that coherently implies a conceptualization of risk in Islam, which is focused on the primacy of the real economy; exchange equilibrium (with any unlawful increase due to riba, gharar or maysir being prohibited); and profit-loss sharing (section 2 of this article). As a result, alternative rationales rule risk management in Islamic finance. In fact, while risk continues to hold an economic value, this value is linked to real assets and business activities through the assumption of liability (‘profit follows responsibility’, al- kharaj bi-l-daman), leading to fundamental peculiarities in the practice of Islamic banking, insurance (takaful) and securities (sukuk) trade that can hardly be compared to conventional ones, as well as rejecting financial products, such as derivatives that are deemed lacking in any commercial value since nothing ‘real’ is actually traded (section 3). To conclude (section 4), the article will remark how this alternative story of risk would require further consideration in financial theory and regulation, for the benefit of a level playing field where conventional and Islamic finance would be able to co-exist and prosper under the same (God’s?) sky. 153 VALENTINO CATTELAN 2. Islamic finance, Muslim anthropology, and legitimate profit: al-kharaj bi-l-daman Islamic finance has recently experienced increasing visibility as an ethical alternative to conventional business,18 as well as exceptional growth in GCC and South- Asian countries (above all, Malaysia), with an average growth rate between 10 and 20 per cent in the last decade.19 At any rate, while forming a promising niche in the Middle East and Asia, at present its market share is only around two to three per cent of total transactions at a global level; moreover, as far as Europe and the West are concerned, the United Kingdom, as the largest national market (after Turkey), still attracts only a marginal percentage of Shari‘ah-compliant assets, despite the favourable regulation fostered by the local government.20 From a historical standpoint, modern Islamic finance finds no precedent in the Muslim society of the past, which did not experience institutionalised credit institutions such as the European banks of the Middle Ages. As shown by Udovitch,21 financial support in classical Islam was mainly supplied by informal capital providers or by credit- labour partnerships for commercial activities. In contrast, the birth of contemporary Islamic finance relates to a flourishing academic literature on Islamic economics, from the ‘70s onwards,22 and to the first experiments of Islamic banking in Egypt, under the liberalization programme by President Sadat, the Infitah (‘opendoor’) policy.23 While these preliminary examples of Islamic finance were primarily driven by purposes of social cohesion through enlarging the access to credit for the poor, it was during the ‘80s that a more advanced industry developed under the criteria of Shari‘ah-compliance, moving from a restricted domain into larger 18 TRIPP, Islam and the moral economy. The challenge of capitalism, Cambridge, 2006. As noted in THE BANKER (2013), Top Islamic financial institutions, Special Report, London, 2013. 20 For one of the first overviews on the matter, see ERCANBRACK, Regulating Islamic finance in the United Kingdom, in CATTELAN (ed.), Islamic finance in Europe: towards a plural financial system, Studies in Islamic Finance, Accounting and Governance, Cheltenham, UK - Northampton, MA, USA, 2013, 157-178. In this light, the original enthusiasm shown by Western scholarship towards Islamic finance as a «key dimension of the relationship between Arab banks and their European counterparties» (WILSON, Islamic finance in Europe, in RSCAS Policy Papers, Musmine – Muslim Minorities in Europe, European University Institute, Florence, 2007, 8) remains still today quite premature. 21 UDOVITCH, Partnership and profit in medieval Islam, Princeton, 1970. 22 See, for instance, CHAPRA, Islamic welfare State and its role in the economy, Leicester, 1979; SIDDIQI, Banking without interest, Leicester, 1976; SIDDIQI, Issues in Islamic banking: selected papers, Leicester, 1983. 23 In order to uphold social mobility by facilitating the access of the poor to credit, the government licensed Nasser Social Bank (1971) and Faysal Islamic Bank (1977), that had their precursor in the Mit Ghamr Savings Bank (licensed by Nasser in 1963 and closed in 1968), deemed to be the first historical experiment of modern Islamic banking. While observing Islamic precepts in their operations (mainly the prohibition of interest, riba), these banks were primarily concerned with realising social aims by providing credit to segments of Egyptian society that, otherwise, would not qualify for loans (see MAYER, Islamic banking and credit policies in the Sadat era: the social origins of Islamic banking in Egypt, in Arab Law Quarterly, 1985, 49). 19 154 IANUS n. 26-2022 ISSN 1974-9805 commercial practice.24 At present, Islamic financial institutions offer to the generality of customers (Muslim or not) an immense variety of products, from investmentdeposits (so-called PSIAs, profit sharing investment accounts) to takaful, lit. ‘guaranteeing each other’, the Islamic risk-shared insurance model aimed at avoiding ‘uncertainty’ (gharar); as well as equity fund management and Islamic securities (sukuk). In compliance with Shari‘ah, fundamental peculiarities characterize Islamic financial transactions, whose validity requires, apart from the avoidance of prohibited investments (such as alcohol, pork, pornography), the elimination of any profit deriving from an ‘unlawful increase’, that is to say, interest (prohibition of riba), unreasonable uncertainty (ban of gharar) and gambling (maysir).25 These rules necessarily result in a favour towards asset- and equity-based financial instruments and a corresponding dismissal of both debt-based products (likely to produce riba) and hazard-affected securities (gharar, maysir). More precisely, since conventional loans are essentially gratuitous in Islamic law (due to the prohibition of riba), ordinary interest-bearing credit transactions are replaced in Islamic finance by asset-backed contracts, such as murabaha (mark-up or cost-plus sale), salam (advance purchase), istisna‘ (commission to manufacture) and hire-and-sale (ijara); or by equity-based instruments such as mudaraba (silent partnership) and musharaka (full partnership). In both cases (asset-backed or equity instruments), legitimate profit has to derive from the necessary assumption of a liability correlated to a reference entity, according to the fundamental principle al-kharaj bi-l-daman, that is to say, profit (i.e. the chance of gain, in the sense of what is someone’s due, what someone deserves; see Wehr: ‫« ﻫﺬﺍ ﺧﺮﺟﻚ‬that’s what you need, what you deserve»26) relates to liability, i.e. the risk of potential loss for which the person is responsible (from the root ‫نمض‬ damina, ‘to be or become responsible or liable, give security or guaranty’). Thus, another notion of ‘fortune’, different from, while complementary to, ‫ﻕﺯﺭ‬ rizq, ‘(God’s) sustenance’, appears here: that is to say, the basic postulate in Islamic finance that any legitimate profit (kharaj) has to derive from a liability, a 24 The literature dealing with Islamic economics and finance is enormous. Valuable references remain ARCHER - KARIM (eds.), Islamic finance: the regulatory challenge, New York, 2007; AYUB, Understanding Islamic finance, New York, 2007; CHAPRA, Islamic welfare State and its role in the economy, cit.; CHAPRA, Islam and economic development, Islamabad, 1993; EL-GAMAL, Islamic finance. Law, economics, and practice, Cambridge, 2006; HASSAN - LEWIS (eds.), Handbook of Islamic banking, Cheltenham, UK, 2007; IQBAL - LLEWELLYN (eds.), Islamic banking and finance: new perspectives on profit-sharing and risk, Cheltenham, UK, 2002; Khan - Porzio (eds.), Islamic banking and finance in the European Union. A challenge, Cheltenham, UK, 2010; SIDDIQI, Banking without interest, cit.; SIDDIQI, Issues in Islamic banking: selected papers, cit.; USMANI, Introduction to Islamic finance, Karachi, 2000; VOGEL - HAYES, Islamic law and finance: religion, risk and return, Arab and Islamic Law Series, The Hague, 1998; WARDE, Islamic finance in the global economy, Edinburgh, 2000. 25 SALEH, Unlawful gain and legitimate profit in Islamic law: riba, gharar and Islamic banking, II ed., London, 1992; CATTELAN, From the concept of haqq to the prohibitions of riba, gharar and maysir in Islamic finance, in International Journal of Monetary Economics and Finance, 2009, 2 (3/4), 384397. 26 WEHR, A dictionary of modern written Arabic, cit. 155 VALENTINO CATTELAN responsibility, or an accountability (daman) of the economic actor for assuming a risk, through which he deserves God’s blessing (rizq) by following the right Path, Shari‘ah. At this point, before interpreting how the principle al-kharaj bi-l-daman affects risk management in Islamic finance, a more in-depth investigation is needed with regard to Muslim anthropology. In my opinion, in fact, instead of looking at Islamic finance in the light of (conventional?) ethical investments, a more appropriate understanding of its logic can be derived from locating its rationales within the Qur’anic Creator paradigm that shapes the life of every Muslim. 27 Accordingly, the conceptualization of risk in Islamic finance may find better interpretation in connecting rizq, as ‘God’s sustenance’, to what is deserved by the human being through becoming responsible for his action (daman as source of legitimate profit). In other terms, how God provides for human existence and how man, by becoming responsible for his actions, deserves God’s favour in Islam?28 As is well-known, Islam means ‘submission to God’: a submission of the believer (muslim), which is complementary to God’s absolute omnipotence. The great theologian and legal scholar al-Ghazali (d. 505/1111), in his doctrinal work al-Iqtisad fi’l-I‘tiqad summarizes the nature of God’s creativeness in the sentence: «What He wills, is and what He does not will, is not»: 29 «This extends to the least, seemingly insignificant, occurrence: “… not even the casual glance of a spectator nor the stray thought in the mind come to be outside the sphere of His will”. Will is also expressed by the term mashi’ah, “volition”, and so it is that the word shay’, “thing”, deriving from the same root, is sometimes glossed as “what has been willed [by God] to exist” ».30 God’s perpetual creative power models all the reality («To Him is due the primal origin of the heavens and earth. When He decreeth a matter, He saith only “Be,” and it is’»: Q. II:117),31 as an element of His unquestionable perfection.32 Indeed, «There are eight names for God, among the canonical ninety-nine, which direct our attention to Allah as the source of all that is: al-Badi’ (Absolute Cause), al-Bari’ (Producer), al-Khaliq (Creator), al-Mubdi’ (Beginner), al-Muqtadir (All-Determiner), al- 27 On the matter, please refer to NETTON, Allah transcendent: studies in the structure and semiotics of Islamic philosophy, theology and cosmology, London, 1989. See also CATTELAN, Islamic finance and ethical investments. Some points of reconsideration, in KHAN - PORZIO (eds.), Islamic banking and finance in the European Union. A Challenge, cit., 76-87; CATTELAN, Shari‘ah economics as autonomous paradigm: theoretical approach and operative outcomes, in Journal of Islamic Perspective on Science, Technology and Society, 1 (1), 2013, 3-11. 28 GIMARET, Théories de l’acte humain en théologie musulmane, Paris and Leuven, 1980. 29 ORMSBY, Theodicy in Islamic thought. The dispute over al-Ghazali’s “Best of all possible worlds”, Princeton, 1984, 192. 30 ID. 31 See also HOOVER, Perpetual creativity in the perfection of God: Ibn Taymiyya’s hadith commentary on God’s creation of this world, in Journal of Islamic Studies, 15 (3), 2004, 287-329. 32 Corresponding texts in Q. III:47,59; VI:73; XVI:40; XXXVI:82; XL:68. 156 IANUS n. 26-2022 ISSN 1974-9805 Musawwir (Fashioner), al- Qadir (All-Powerful) and al-Qahhar (Dominator), each with various connotations of creating».33 God being the only Creator, the Muslim lives ‘in surrender’ to God’s omnipotence, as an agent of the only Actor, participating in the creation by performing God’s Will, within a conception of time where the divine immediate creation is inserted within the flow of contingent human agencies, and «the world comes to be at the time when the eternal will stands in nexus with its coming-to-be».34 The complementary truths of God’s omnipotence and human responsibility, with the corollary linkage between divine eternity and human history in the flow of time (conceived as an atomistic succession of instants, each created by God),35 find their pivotal reconciliation through the Revelation of Shari‘ah (literally, ‘the road leading to water’, the Way, the Path) (Q. XLV:18).36 In fact, in order to make human beings responsible for their actions and able to deserve His blessings, God has given the Qur’an,37 lit. ‘what is read’, the ‘recitation’, and sent the Prophet as reminder of the Message («Say: “Nothing will happen to us except what Allah has decreed for us: He is our Protector”: and on Allah let the Believers put their trust»: Q. IX:51).38 There are no obstacles for the believer to seek the right Way, the true Guidance: «for the Muslim the whole religion itself is in a very real sense a synonym of God’s guidance: Islam is “being rightly guided”».39 The Revelation is clear, and the clarity of Truth doesn’t require any imposition: «Let there be no compulsion in religion: Truth stands out clear from Error: whoever rejects Evil and believes in Allah hath grasped the most trustworthy hand-hold, that never breaks. And Allah heareth and knoweth all things» (Q. II:256).40 Anyway, the clarity of the Truth does not mean that 33 BURRELL, Creation, in WINTER (ed.), The Cambridge companion to classical Islamic theology, Cambridge, 2008, 141. 34 Ghazali, as quoted in ORMSBY, Theodicy in Islamic thought. The dispute over al-Ghazali’s “Best of all possible worlds”, cit., 193; for the alternative conceptualization of freedom in Islam, see WATT, Islamic alternatives to the concept of free will, in La notion de liberté au Moyen Age. Islam, Byzance, Occident, Paris, 1985, 15-24. 35 In this regard, see the illuminating BÖWERING, The concept of time in Islam, in Proceedings of the American Philosophical Society, 141 (1), 1997, 55-66. 36 CALDER, Shari‘ah, in Encyclopaedia of Islam, II ed., 1978. 37 «The Qur’an as a whole… maintains human responsibility at the same time as it asserts divine omnipotence… In the end, then, the Qur’an simply holds fast to the complementary truths of God’s omnipotence and man’s responsibility» (BELL, Introduction to the Qur’an, Edinburgh, 1970, 150-152). 38 This is in Islam the Way, the Guidance that expresses the decision by God intervening under the form of a communication concerning human actions; in this sense, according to Stelzer, «divine law is a manifestation of the divine Word» (STELZER, Ethics, in WINTER (ed.), The Cambridge companion to classical Islamic theology, Cambridge, 2008, 169). See also GOLDZIHER, Introduction to Islamic theology and law, New Jersey, 1981. 39 NETTON, Allah transcendent: studies in the structure and semiotics of Islamic philosophy, theology and cosmology, cit., 24-25. 40 «The truth is clear, settled, and definitely convincing… The truth stands here, facing us; it is presented to us. The truth in its completeness is submitted to us as clarity-for-us… The truth, established and secured by its certainty, makes no distinction between “momentary” and “eternal”. The truth is valid not because it has ascended above the nonlasting; the truth is valid because it stands firmly established 157 VALENTINO CATTELAN it is manifest, and ilm al-fiqh (literally ‘science of comprehension’, ‘understanding’) is the discipline specifically aimed at making manifest God’s Will as clearly revealed in the Qur’an and exemplified by the Prophet (sunna). To summarize the anthropology of Islam, as depicted by Netton in the Qur’anic Creator Paradigm, Muslim conception of life «embraces a God who (1) creates ex nihilo; (2) acts definitely in historical time; (3) guides His people in such time [through Shari‘ah]; and (4) can in some way be known indirectly by His creation [in the light of the understanding of the Revelation through fiqh]».41 Indeed, in the total sovereignty by God to create everything that comes-to-exist, the ‘real’ itself (haqq, which is one of the name of God: al-Haqq) holds a meaning of ‘Truth’ as being ‘right’: in other terms, it fosters a conception of the reality as being essentially ethical, a product of God’s Will in the unity (tawhid) of the creation as the only (real, true, just) ‘Actor’, of which the believers are ‘agents’. «A vision of the reality as being in its essence imperative, a structure not of objects but of wills. The moral and the ontological change places, at least from our point of view. […] The “real” here is deeply moralized, active, demanding real, not a neutral, metaphysical “being”, merely sitting there awaiting observation and reflection; a real of prophets not of philosophers».42 Thus, the ‘right’ ontologically acquires a ‘tangible’, ‘real’ nature (not by chance ‘reality’ is one of the various meaning of haqq (pl. huquq), next to ‘truth’ and ‘right’),43 as a ‘concrete’ entity whose allocation is provided by God (through the benevolence of His blessing, ‫)ﺭﺯﻕ‬, in the light of Shari‘ah: and, coherently, it is the performance of Shari‘ah that makes the human being responsible (damin) for his actions, thus deserving what is due (kharaj). Coming back now to our topic of discussion, to which extent does this ontological nature of the ‘right’ affect the idea of risk and the practice of risk management? Indeed, in a reality where everything is an immediate divine creation and the ‘right’ (haqq) subsists within the performance of Shari‘ah, if the future remains an (economic) opportunity, it is not anymore a ‘human product’ but the result of the human participation in the divine creation of the ‘real’ as an agent of the only ‘Actor’. It is this dual canon of ‘participation’ and ‘agency’ that logically implies in Islamic finance a conceptualization of risk that tends towards the primacy of the real economy over finance, exchange equilibrium, as well as risk-sharing strategies in financial dealings. In a nutshell, paraphrasing Bernstein, the actions we dare to take, which depend on how responsible we are in performing Shari‘ah in the reality created by God, are what the story of risk in Islamic finance is all about. amid the flow of things nonlasting» (SMIRNOV, Understanding justice in an Islamic context: some points of contrast with Western theories, in Philosophy East and West, 46 (3), 1996, 338). 41 NETTON, Allah transcendent: studies in the structure and semiotics of Islamic philosophy, theology and cosmology, cit., 22. 42 GEERTZ, Local knowledge. Further essays in interpretive anthropology, New York, 1983, 177-178. 43 LANE, Arabic-English lexicon, 8 Vols., 1865. Available online at http://www.laneslexicon.co.uk. 158 IANUS n. 26-2022 ISSN 1974-9805 3. Conceiving and managing risk in God’s creation: the logic of Islamic finance As just remarked, in Islamic finance, according to the principle al-kharaj bi-ldaman, risk management is conceptualized as a distribution of gains and liabilities where the deserved profit (kharaj) follows the assumption of responsibility (daman) in the light of man’s participation in the marketplace as an agent in the ‘real’/‘right’ (haqq) created by God. Here, the ‘right’ (haqq) necessarily relates to something ‘real’ (haqq, again); thus, any advantage or disadvantage cannot be separated from the actual possession or ownership of an underlying asset. Coherently, in Islamic finance risk management is shaped in the light of the primacy of the real economy, and asset-backed transactions substitute the nominal exchanges of conventional finance. In a nutshell, risk becomes in Islamic finance an asset-related ‘entity’, and not a commercial ‘entity’ per se, to the extent to which ‘pure’ financial products, such as derivatives, deemed lacking in any commercial value (since nothing ‘real’ is actually traded) are rejected. This alternative conceptualization of risk may find further explanation within Islam’s atomistic conception of time,44 where God’s creativeness shapes any instant in the unity (tawhid) of the ‘real’/‘right’ (haqq as result of the only Truth, Haqq). At the micro level of human existence, this cosmology45 is mirrored by a haqq that is not conceived anymore as the ‘right’ of a person in opposition to the ‘right’ of another person, but as a logical structure comprising both the ‘right’ and its corresponding ‘obligation’,46 which makes sense «only within the unity of the two “elements” […] the huquq are not the “rights” and “obligations” that serve to connect autonomous elements»,47 but ‘sides’ of a justice existing through a balanced unity (tawhid), where economic resources are ‘shares’ of the unique justice (‘adl) given by God (from which, possibly, the concept of ‘sustenance’, ‫)ﺭﺯﻕ‬. Then, if time is composed of single instants created by God, each of them must hold a balanced distribution of ‘rights’ (huquq), ruled by a transactional equilibrium, which is guaranteed by quantitative balance (prohibition of riba) and qualitative disclosure (gharar and maysir).48 Debtstructures and hazard-affected transactions (as in the case of financial derivatives), therefore, become unlawful in the light of Islamic risk management. 44 Thus, «atomism was not only most congenial to a vision of God acting instantaneously in the world as the sole true cause, it also proved akin to Arabic grammar, which lacks genuine verbs for “to be” and “to become”. Neither does Arabic employ the tenses of past, present, and future. Instead, it uses verbal aspects of complete and incomplete, marking the degree to which an action has been realized or is yet to be realized without distinguishing precisely between present and future» (BÖWERING, The concept of time in Islam, cit., p. 60). 45 NETTON, Allah transcendent: studies in the structure and semiotics of Islamic philosophy, theology and cosmology, cit. 46 KAMALI, Fundamental rights of the individual: an analysis of haqq (right) in Islamic law, in The American Journal of Islamic Social Sciences, 10 (3), 1993, 340-366. 47 SMIRNOV, Understanding justice in an Islamic context: some points of contrast with Western theories, cit., 345. 48 CATTELAN, From the concept of haqq to the prohibitions of riba, gharar and maysir in Islamic finance, cit. 159 VALENTINO CATTELAN Last, as seen, this asset-backed financial model, fostered by the need of exchange equilibrium, upholds human agency and participation in the ‘real’/‘right’ (haqq) through criteria of profit-loss sharing implemented by Islamic financial institutions in their business activity.49 Considering all this, some conclusions can be advanced on the conceptualization of risk (as rizq ‫ ﺭﺯﻕ‬and, then, daman ‫ )ﺿمﻦ‬in Islamic finance. A fundamental principle has been preliminarily mentioned in our investigation: alkharaj bi-l-daman, ‘profit follows responsibility’, ubi emolumentum ibi onus. The principle is incorporated in a famous hadith, according to which the risk for loss of an asset falls upon the person who is receiving benefit from the asset itself.50 As seen, in Islamic finance any advantage or disadvantage cannot be separated from a contextual ownership or possession (gain accompanies liability for loss). Thus, in case of commercial activities, where participants provide capital and/or labour, the contracting parties necessarily share the risk of the undertaking, and, consequently, its profits (mudaraba and musharaka). In asset-based transactions, risk follows the ownership or possession of the res, and a fixed return (e.g., the mark-up of murabaha) becomes admissible, not in terms of the illicit riba, but as related to the risk that has been borne by the vendor (again, al-kharaj bi-l-daman). In other terms, here, the risk is not a commercial ‘entity’ per se, but «is generally a function of either legal ownership or possession of the res».51 The proposed interpretation of al-kharaj bi-l-daman as the principle governing the legitimacy of profit in Islamic risk management finds confirmation in the centrality of the object in the theory of contracts in Islamic law (where «it is the thing… that takes primacy. […] the thing must have a material, concrete existence. It does not exist trace of what has been called: res incorporales»).52 This principle provides hermeneutical help in the understanding of the fatawa issued by Shari‘ah scholars in Islamic finance, as well as the recommendations by the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI).53 49 Although much is still to be done in the direction of equity-products, such as mudaraba and musharaka, as major share of their portfolio. Accordingly, Islamic scholarship has always called for an increase of equity-based products in the balance sheets of Islamic financial institutions. See, for instance, the resolution by the AAOIFI Shari‘ah Board (13- 14 Feb 2008, Bahrain): «the Shari’ah Board advises Islamic Financial Institutions to decrease their involvement in debt- related operations and to increase true partnership based on profit and loss sharing in order to achieve the objectives of the Shari‘ah». 50 Abu Dawud, Tirmidhi, Nisa’I, ibn Maja, Ahmad ibn Hanbal. The principle was also incorporated in Art. 85 of the Majalla (see also Art. 87, al-ghurm bil-ghunum, which has the same meaning). 51 FADEL, The regulation of risk in Islamic law, the common law, and federal regulatory law, in Proceedings of the Fourth Harvard University Forum on Islamic Finance, Harvard University, Cambridge, Massachusetts, 2002, 83. 52 CHEHATA, Études de droit musulman. 2 / La notion de responsabilité contractuelle. Le concept de propriété, Paris, 1973, 122. See also VOGEL, Contract law of Islam and the Arab Middle East, in International Encyclopedia of Comparative Law, Vol. VII, Contracts in general, Chapter 7, Tübingen, Dordrecht, Boston, Lancaster, 2006, 1-77. 53 The Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) is a nonfor-profit organization established on 26th Feb 1990, aimed at proposing accounting, auditing, 160 IANUS n. 26-2022 ISSN 1974-9805 For instance, the principle al-kharaj bi-l-daman as ‘risk linked to the res’ finds a direct application in the definition of sukuk, Shari‘ah-compliant investment certificates,54 according to Art. 2 AAOIFI Shari‘ah Standards. Here investment sukuk are defined as «certificates of equal value representing undivided shares in ownership of tangible assets, usufruct and services or (in the ownership of) the assets of particular projects or special investment activity» [italics not in the original text] and, according to Art. 5/1/2, «it is permissible to issue certificates for (to securitize) assets that are tangible assets, usufruct and services by dividing them into equal shares and issuing certificates for their value. As for the debts owed as a liability, it is not permissible to securitize them for the purpose of trading». The reference to the ownership of tangible assets, usufruct, and services as ‘source’ of legitimate profit for the sukuk holder is clearly related to the interpretation previously given of the principle al-kharaj bi-l-daman; the reference to ‘undivided shares’ finds justification in the undivided character of the reference pooling; the criteria of primacy of real economy, transactional equilibrium and profit-loss sharing clearly emerge as well. The same principle has been confirmed in a resolution by the AAOIFI Shari‘ah Board (13-14 Feb 2008, Bahrain) on the issuance and trade of sukuk, which has brought about massive consequences on the market of Islamic securities, specifying that «sukuk, to be tradable, must be owned by sukuk holders, with all rights and obligations of ownership, in real assets, whether tangible, usufructs or services, capable of being owned and sold legally» [italics not in the original text]. The meaning of the ruling, with its reference to the ownership of the underlying assets, reflects a logic where commercial dealings are part of a ‘reality’ (haqq) created by God: accordingly, the ‘incorporation’ of the risk in real assets, through their ownership or possession, guarantees the balanced distribution of gains according to the responsibilities assumed by the parties (al-kharaj bi-l-daman). At this point, one may say that risk does not exist in Islamic finance as ‘unbundled commodity’ the way it does in conventional finance: on the contrary, since «risk of loss is deemed to be a characteristic either of legal ownership or possession, [… it is] not deemed property that can be exchanged for other property».55 Thus, in Islamic finance, the risk is shared when capitals or workforce are put together (commercial enterprises), since it belongs to the capitals and workforce (mudaraba and musharaka); it is transferred in a sale (or in any other transaction, such as lease) since it belongs to the transferred property (murabaha, salam or ijarah). With specific reference to the ban of ‘unreasonable uncertainty’, and in accordance with the reasoning followed in this article, El-Gamal interprets the prohibition of bay’ governance, ethics and Shari‘ah standards for Islamic financial institutions and the industry (www.aaoifi.com): see, for instance, previous note 49. 54 In the global financial market investment sukuk are usually based on the contracts of mudaraba or musharaka; in the case of the sale or rent of the assets, other structures are applied (i.e. sukuk al-murabaha or sukuk al-ijara). 55 FADEL, The regulation of risk in Islamic law, the common law, and federal regulatory law, cit., 83. 161 VALENTINO CATTELAN al- gharar in the sense of the ban of the ‘trading of risk (of loss)’, as property per se.56 Consequently, a conventional insurance contract, where the risk of negative events is transferred from the beneficiary to the insurer with the contextual payment of a premium, is deemed invalid in Islamic finance, since the amounts exchanged by the insured and the insurer are unequal and depend upon uncertain future events. For these reasons, the insurance contract is replaced in Islamic finance by the takaful company, where, on the contrary, the risk is shared among the participants in a mutual guarantee linked to an investments fund, which may be structured as mudaraba or musharaka or according to a wakala (agency) contract related to the administration of the fund. Once again, the criteria of primacy of real economy, exchange equilibrium and profitloss sharing dominate Islamic risk management. In this context, an example of this alternative conceptualization is given below, with regard to the invalidity of a conventional insurance contract: «Take an insurance contract. At T1, A, the insured, pays a premium to B, the insurer, in exchange for B’s promise to protect A against certain losses should a predetermined contingency occur. A pays a thaman in the form of premiums but does not receive a muthamman, at least not immediately, in return. Likewise, B receives a muthamman but does not immediately deliver a thaman to A. After the parties enter into the insurance contract, one of the two scenarios is possible. In the first scenario, the specified contingency occurs and B compensates A for the loss. From the perspective of the jurists, the money delivered from B to A is A’s muthamman that he receives in exchange for the premiums that he had already paid. Similarly, the money B pays A in this scenario is the thaman that B paid in order to receive A’s muthamman (premiums). Accordingly, they conclude that this exchange is invalid: first, because it involves riba (the deferred exchange of money); and second, because of uncertainty in the thaman and the muthamman. Recall that the promise to indemnify against a loss cannot serve as the muthamman that would complete the exchange because it is not property that can be delivered to the insured. In the second scenario, the term of the insurance contract is completed without the occurrence of the specified contingency. In this case, according to the jurists, there simply has been no exchange: although the insured has delivered property to the insurer in the form of premiums, the insured has never delivered any property (muthamman) to the insured in return. Likewise, the insurer has received property (muthamman) without paying a price (thaman) in exchange. Accordingly, the trade fails because it entails “consuming the property of another unjustly” (akl amwal alnas bi-al-batil)”. In the view of the jurists, it is unjust for the insurer to keep the property of the insured without ever giving him property in return».57 56 EL-GAMAL, An economic explication of the prohibition of gharar in classical Islamic jurisprudence, Paper presented at the 4th International Conference on Islamic Economics, Leicester, UK, 2000. 57 FADEL, The regulation of risk in Islamic law, the common law, and federal regulatory law, cit., 83. 162 IANUS n. 26-2022 ISSN 1974-9805 4. Conclusions: another, remarkable, story of risk? Sailing (metaphorically) the Mediterranean from its Western to the Arab side, in search for firm land (the Greek ριζα) to avoid the perils of the sea, this article has moved from the Western risk to the Arabic rizq ‫ﺭﺯﻕ‬, in the attempt to provide an interpretation of risk management within the distinctive anthropology of Islamic finance. In this direction, it has been suggested that in order to look at the hazard of the future, ‫ ﺯﻫﺮ‬zahr, the ‘dice’ of human chances, through an inter-cultural approach, Bernstein’s Remarkable story of risk should be read not ‘against’, but ‘in the Name of God’. Indeed, in an anthropology of time where not only the future, but also the present, is a divine (rather than human) creation, the conception of risk is re-framed at its very roots, leading to criteria of risk management that cannot leave aside the ‘real’/‘right’ (haqq) of God’s (Haqq) creation. Thus, primacy of real economy, exchange equilibrium and the pursuit of profit-loss sharing become the cornerstone of any legitimate human profit (kharaj) as a result of an assumption of liability (daman); and the paradigm of banking, insurance and investment activities, necessarily framed in the light of asset- backed and commercial enterprises, becomes hardly comparable to the conventional one. Of course, the voyage from the Western risk to the Arabic rizq ‫ﺭﺯﻕ‬, and then daman ‫ ﺿمﻦ‬as human responsibility for performing Shari‘ah as source of legitimate profit (‫ ﺧﺮﺝ‬kharaj), has been roughly ‘mapped’ in these pages, and rapidly sketched: much further investigation is needed for a comparative history of risk, according to an inter-cultural perspective. But, to the extent to which this article may represent a little contribution to the matter, two final considerations are advanced, both with regard to the Western and Islamic theories of risk management, and to their current co-existence in the international financial market. First, looking at both sides of the Mediterranean, another protagonist, next to risk, should be considered for a comprehensive, comparative financial theory: the idea of ‘credit’, and credit management. In this regard, if in Bernstein’s Against the gods the role of Christian thought in the history of risk is marginalized, the great cultural historian Jacques Le Goff, in contrast, has highlighted how religion must not be forgotten when writing the history of money and credit in Western society:58 in this way, in the ‘fight’ between gods and men for ruling the (un)expected, the former get their own back. On the Arab side, if Brunschvig underlines how in classical Islamic thought «like any good and useful good, gold (dhahab) and silver (fidda, wariq) have been created and given generously by God to the disposition of the human being» 59 (and here, indirectly, rizq ‫ ﺭﺯﻕ‬reappears again), much has still to be investigated on the conception of money and credit relations (dayn) in Islamic finance. Metaphorically 58 LE GOFF, La bourse et la vie. Economie et religion au Moyen Age, Paris, 1986; LE GOFF, Le Moyen Age et l’argent. Essai d’anthropologie historique, Paris, 2010. 59 BRUNSCHVIG, Conceptions monétaires chez les juristes musulmans (VIII-XIII siècles), in BRUNSCHVIG (ed.), Études d’islamologie, Vol. II, Paris, 1976, 273. 163 VALENTINO CATTELAN speaking, another voyage through the Mediterranean is certainly needed. Second, if an alternative conceptualization of risk characterizes Islamic finance, as this article has tried to highlight, it seems to me that further consideration should be given to this diverse, while still remarkable, story of risk in financial regulation, too. In fact, while a plural financial system, where different conceptions of economic justice(s) co- exist and influence each other,60 may still be distant, it cannot be denied that a level playing field, where conventional and Islamic finance will be able to coexist and prosper in the same marketplace, will necessarily have to consider how parameters of capital adequacy and governance for Islamic financial institutions should be adapted in the light of their peculiar model of risk management, requiring amendments ad hoc to international standards (e.g., Basel criteria). These adaptations, far from certifying ‘god’s victory’ over the human story of risk, will foster a fair competition in a marketplace where Islamic and conventional finance will properly integrate one aside the other, under the same (God’s) sky. In the end, if on the one side the remarkable story of risk leads our rationality as well as imagination to deal with the (un)expected, between gods’ and men’s power, and in this way «helps define what it means to be a human being» and «how free we are to make choices»,61 on the other side a comparative study of risk in financial theory may lead “to alternative perspectives on economic development and social integration, nourishing […] an open society through the centrality of individual freedom”.62 And this freedom to choose among alternative financial models may be what the future story of risk will be about. 60 CATTELAN (ed.), Islamic finance in Europe: towards a plural financial system, Studies in Islamic Finance, Accounting and Governance, Cheltenham, UK - Northampton, MA, USA, 2013. 61 BERNSTEIN, Against the gods: the remarkable story of risk, cit., 8. 62 CATTELAN, Towards a plural financial system, in CATTELAN (ed.), Islamic finance in Europe: towards a plural financial system, cit., 232. 164