Page 161 - IANUS n. 26 - Fideiussioni omnibus e intesa antitrust: interferenze e rimedi
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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-l-
               daman, 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,   where  God’s  creativeness  shapes  any
                                                   44
               instant in the unity (tawhid) of the ‘real’/‘right’ (haqq as result of the only Truth,
                                                                         45
               Haqq). At the micro level of human existence, this cosmology  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
                                           46
               its corresponding ‘obligation’,  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»,   but  ‘sides’  of  a  justice  existing  through  a
                                              47
               balanced  unity  (tawhid),  where  economic  resources  are  ‘shares’  of  the  unique
               justice (‘adl) given by God (from which, possibly, the concept of ‘sustenance’,
               ﻕﺯﺭ). 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).  Debt-structures and hazard-affected
                                                      48

                  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.

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