Page 117 - IANUS Diritto e finanza - Rivista semestrale di studi giuridici - N. 29 - giugno 2024 - Il diritto alla sostenibilità: strumenti giuridici della transizione ecologica

IANUS n. 29-2024 ISSN 1974-9805

socially responsible investments and economic empowerment.
However, from an economic and financial perspective, as mentioned above,
risk-sharing (equity) is simply an alternative to risk-shifting (debt): in terms of
corporate governance, both represent potential sources of financing for an
undertaking, with related issues of credit and risk management. Indeed, from a
historically perspective, Abraham Udovitch has shown that the Muslim
mudarabah (silent partnership) was the ancestor of the European commenda, the
medieval original contract for all the partnership business agreements that are
today spread in the West, and that the mudarabah entered Europe through
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Mediterranean contacts with the Near East . In a similar way, sukuk (pl. of sakk)
in medieval Islam indicated any ‘credit document’ or ‘certificate’ and were
absorbed in the European lex mercatoria to become later the ‘cheque’ of French
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law (not by chance, phonetically sakk corresponds to cheque) . Anyway, despite
this common ‘Mediterranean cradle’ and its corporate governance ‘neutrality’ in
comparison to debt, the morally superior status of risk-sharing has been persistently
argued in the Islamic finance narrative
- both as a model of credit management that is preferable to interest-based
capitalism (although interest, per se, reflects a logic of protection towards
the unknown other that bears its own morality: section 2)
- and as a community-oriented way of managing risk in forms of
mutuality/cooperation, as if the rediscovery of the model of Gemeinschaft
would immediately imply stronger distributive justice (section 3).
In fact, none of the previous two postulates can be deemed intrinsically true,
without the setting of appropriate arrangements for the pursuit of economic
justice.
In this regard, recent history has shown how mechanisms of micro-credit
aimed at local economic empowerment have been successfully managed through
funding repaid with interest, as in the famous case of Grameen Bank by
Muhammad Yunus . Furthermore, the link between risk-sharing and
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community-development, if certainly can be subscribed in terms of the potential
advantages of social capital and collaborative governance, require a balanced
intervention and the consideration of the role of states and markets for optimal
results. More precisely, as underlined by Mertzanis, if «[t]he term community
makes it clear that understanding trust, cooperation, generosity and the
behaviours emphasized in the social capital literature requires the study of the
structure of social interactions, … [it also] underlines the fact that the same
individuals will exhibit different levels and types of social capital depending on

71 UDOVITCH, Partnership and profit in medieval Islam. Princeton, 1970. See also UDOVITCH, At the
origins of the Western commenda: Islam, Israel, Byzantium, in Speculum, 37, 1967, 198-207.
72 A brief outline of the history of risk shifting from Islam to Europe can be found in ÇIZAKÇA,
Risk sharing and risk shifting: an historical perspective, in Borsa Istanbul Review, 14(4), 2014, 191-195.
73 YUNUS, Banker to the poor. The story of the Grameen Bank, London, 2003.

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