1	Islamic Financial Instruments & Transactions Mahmoud A. El-Gamal Rice University Houston, TX More thorough explanations at: http://www.ruf.rice.edu/~elgamal
2	Two main prohibitions Ribā: (lit. increase, Hebrew: Ribit) Superficial translations: “interest”, “usury” (exorbitant interest). In fact: there is Ribā without interest (or time), as well as interest without Ribā (embedded in most Islamic banking instruments). Islamic Law recognizes the time value of money. Correct definition: The unbundled sale of credit, e.g. an interest-bearing loan, interest being the price of credit. Bay`u l-Gharar: The unbundled sale of risk, e.g. gambling, insurance, derivatives, payment or premium being the price of unbundled risk.
3	History of Usury and Ribā prohibitions Non-Abrahamic prohibitions of “usury”: Code of Hammurabi (ca 2100 BC): interest ceilings of 33% and 20% on loans-in-kind. Hindu law: total interest may not exceed principal. Plato,…: Capital not viewed as a valid “factor of production”. Judeo-Christian-Islamic prohibition of “Ribā”: Exodus [22:25], Leviticus [25:35-7], Deuteronomy [23:19-20], Bava Metzia, Chapter 5, Mishna 2. Luke [6:27-36], Benedict XIV (De Synodo Diocesana, X.iv, n.6), First Council of Carthage (345)-until-Fourth Council of the Lateran (1215). Qur’an [30:39], [3:130], [2:275-279], various Prophetic traditions.
4	Universality of prohibitions of Ribit Interpretations of Exodus [22:25], later Canonical Texts Rare: “Ami” (my people) interpreted to mean poor debtors. Commonly (Ami = children of Israel) interpreted to apply prohibition of Ribit only to inter-faith loans; c.f. Talmud (Bava Metzia 70b – 71a). Maimonides (Laws of Loans, Ch. 5, Law 2) restricted permission of charging moderate interest to cases of necessity. Fourth Council of the Lateran (1215) allows Jews to charge interest at non-usurious (non-exorbitant) rates. Distinguish consumption loans (to the needy) from productive loans. Sixteenth Century – modern day: Heter ‘Iska: replaced loan-financing with silent partnership investment. Moral hazard problems led to refinements of HI to allow for fixed interest. Calvin permitted moderate interest on loans. Modern debates on interest rate ceilings (as in the code of Hammurabi).
5	Islamic Sharī^ca: Prohibition of Ribā Al-Sharī^ca: Lit.: “The Way” … to a water hole … in the desert! (comp. Halakhah). Revealed Law in Canonical Texts: The Qur’an and Prophetic traditions. Islamic Law: A mixture of canon and common law Fiqh (jurisprudence): (lit.) understanding of the Sharī^ca Canon Law: All rulings must be referred back to the Canonical Texts. Unanimous interpretations are raised to the same authoritative level. Common Law: Jurists rely on precedents in opinion, interpretation, etc. Universal Prohibition of Ribā (interest on loans): Explicit in Canonical Texts. Virtually no dissent on interpretation. Islamic finance avoids loans as finance contracts: loans are for charity.
6	Neither a borrower nor a lender be … Finance without interest-bearing loans: Equity finance: Obvious “profit/loss-sharing” rules in partnerships, silent partnerships, and (contemporary) ownership of common shares. Recent trend: Islamic mutual funds, VC, private equity funds, etc. Silent partnerships used to generate Islamic banks’ “liabilities-side”. Debt finance (Islamic banking “assets-side”): Form: initiate debt (including implied interest) through cost-plus sales (Murabaha), leasing (’Ijara), etc. OCC #867 (1999) & OCC #806 (1997) recognized respective contracts as “secured lending within the business of banking”. Substance: Enforcement of closer ties to “real” transactions, marking collateral value and implied rate of return to market.
7	“Sharī^ca Compliant Finance” Islamic financial institutions appoint religious scholars to serve on “Sharī^ca boards”, approve contracts and monitor operations. Efforts are underway to “harmonize Sharī^ca and accounting standards” (e.g. AAOIFI, etc.). What do Sharī^ca boards consider to check for Sharī^ca compliance? Real and legitimate transactions underlying financial contracts. Absence of Ribā (interest on a “loan-like” contract) and Gharar. A contract form that ensures the above. A contract wording that ties the contract form to historical forms known in classical jurisprudence (hence the Arabic names). In the tradition of Canon Law, the names imply permissibility. In the tradition of Common Law, the names and contract specifics ensure derivation from precedents and valid analogies.
8	“Sharī^ca Compliant Finance” Example 1: Home financing Object to the “mortgage loan” language, since interest-bearing loans (secured or otherwise) clearly constitute Ribā. First step: The Islamic financing firm “acquires” the property. Second step: The firm typically finances the customer’s purchase of the property in one of three ways: Cost-plus credit sale (Murābaha): Customer buys the property from firm on credit, amortization schedule calculated in similar manner to conventional mortgage (often LIBOR+ used as benchmark). Lease-to-own (‘Ijāra wa qtinā’): Customer pays rent for portion owned by firm + buys back part of firm’s equity. Rent determined by market rental rate of comparable properties, or LIBOR+. Rolling partnership (mushāraka mutanāqisa): similar to lease, different treatment of taxes, insurance, capital gains sharing, etc..
9	“Sharī^ca Compliant Finance” Example 2: Investing in stocks (Islamic mutual funds) Eliminate companies with primary or substantial businesses that are illicit in Islam (e.g. liquor, tobacco, gambling, pornography, etc.). Eliminate companies with excessive debt-to-assets (highly leveraged). Eliminate companies with excessive interest income (idle capital). Within the resulting universe of securities, apply standard portfolio management techniques to provide a variety of risk-return profiles under different business conditions (e.g. sectoral bias, growth, value, …). Some have argued for regional, developmental, and ethical biases being incorporated in the portfolio selection methodologies (ethical investing), but such considerations seem currently to be secondary at best.
10	Growing pains of Islamic Finance Contemporary Islamic finance is a only a few decades-old. Its emergence and growth coincided with (and resulted from) increased degrees of adherence to explicit Islamic forms (from ritual worship, to dress-codes, to social processes, to economic life). This explains the focus on contract forms and names. There is an ongoing effort to bridge a centuries-wide gap of jurisprudence development to meet today’s Muslims’ needs within various national legal/regulatory frameworks. This often puts form above substance, and results in higher (legal and other) short-term transactions costs (in this instance, including your time… Thank you!).