Religion and Contract Law in Islam From Medieval Trade to Global Finance 1st Edition by Valentino Cattelan 1138504041 9781138504042

1 Expelling the merchants from the Temple: methodology and the contents of this book

1.1. One Ring, some daemons, and Jesus Christ: the non-identity (1M) of law and religion

1.2. The problem at the heart of this book

1.3. Some conceptual help from three companions

1.3.1. How to compare? Non-identity, dialectic, and transformative praxis (Bhaskar)

1.3.2. What is Islam? Unity as plurality in the Muslim world (Ahmed)

1.3.3. How to deal with law-religion in Islam? Visual vs acoustic space (McLuhan)

1.4. Carrying the One Ring in the practice of trade: revelation, tradition, and reality

2 The revealed Word in translation: the space of law and religion in Islam

2.1. Babel, languages, and the sacred law of Islam

2.2. Profanations: religious vs secular in the Temple of Western modernity

2.3. An absence of religion? Translating the non-identity of dīn as Islamic bíos

2.4. The revelation of Islam: the Wor(l)d and its understanding

2.4.1. Translating Šarī‘ah in human life: the normative science of fiqh

2.4.2. The dictum of the revelation as pre-scribed Law and the uṣūl al-fiqh

2.4.3. Furū‘ al-fiqh as de-scribed law in a iurisdictio of verdicts

2.4.4. From the rule (ḥukm) to the right (ḥaqq): an instance of action in the wor(l)d

2.4.5. Echoing the revelation in an acoustic space: a sacred law without corpus

2.5. The bridge of Babel: from the negation of fiqh (2E) to the comparison of the ‘aqd

3 Comparing legal traditions: contract law and Muslim fiqh

3.1. The ‘aqd as a craft of place in the space of Islam

3.2. A map of the city? The Two Towers and the plural itineraries of the madhāhib

3.3. ‘Aqd and Islamic dīn

3.3.1. The rule (ḥukm al-‘aqd), its subject, and its object: from legal capacity (ahliyya) and personality (dhimma) to the duty (wujūb) of the mukallaf

3.3.2. Religious qualifications (al-aḥkām al-khamsa) and the legal validity of the šar‘ī act, its constitutive (arkān) and conditional (šurūṭ) elements

3.3.3. At the borders of the city: the act of disposal (taṣarruf) in relation to contractual rights (ḥuqūq al-‘aqd)

3.4. The role of human will and rationality in the psychological formation of the ‘aqd

3.4.1. Autonomie de la volonté and the ‘reason’ underlying the contract: ‘illa and sabab in comparison with the civilian cause and the consideration of common law

3.4.2. Freedom of contract, nominate contracts, and attached stipulations

3.4.3. Psychological components of the ‘aqd: will (irāda), intention (niyya), animus contrahendi (qaṣd), choice (khiyār), and individual consent (riḍā)

• Šāfi‘īs and Ḥanafīs: objectivism

• Mālikīs and Ḥanbalīs: subjectivism

3.4.4. The vices of consent (duress, ikrāh; fraud, tadlīs; mistake, ghalaṭ), misrepresentation, and the doctrine of al-khiyārāt

3.5. The construction of the ‘aqd as consensual transfer of properties

3.5.1. Expression (ṣīghah), verbalism, and the unity of negotiations (majlis al-‘aqd)

3.5.2. Offer (ījāb) and acceptance (qabūl) in the tarāḍī: what is the nature of the agreement in Muslim fiqh?

3.5.3. The subject matter (maḥall) of the contract (al-ma‘qūd ‘alayhi): exchanging properties (amwāl), either ‘ayn or dayn, in relation to the dhimma

3.5.4. The equilibrium of the contract and the doctrines of ribā, maysir, and gharar

• Ribā

• Gharar

• Maysir/Qimār

3.6. A unity of diversities: fiqh pluralism and the totality (3L) of the ‘aqd as the performance of God’s will

4 Realities of the Muslim world: changing contexts over time

4.1. Continuity, change, and transformative praxis (4D): fiqh and textual polities

4.2. Verbal Trade

4.2.1. Pre-Islamic customs, formalism, and the origins of the ‘aqd

4.2.2. Verbalism and documentary evidence in Muslim medieval trade

4.2.3. Legal devices (ḥiyal): contractual theories-into-practices

4.3. Codified Norm

4.3.1. The invention of a corpus for Islamic law and the ‘aqd: Western transplants and the codification process in Muslim countries

4.3.2. Embodying the West: Sanhūrī’s reformulation of sabab and ghalaṭ in the Egyptian Civil Code

4.4. Typewritten Market

4.4.1. Global capitalism and the invention of Islamic finance: a new life for the ‘aqd between authenticity and contamination

4.4.2. The textual polity of Shari‘ah-compliance

4.4.3. From fiqh legal texts to financial technology

4.5. Human agency and the urban designs of the ‘aqd