Shariah’s Black Box

C. Why should SCF come under special scrutiny for civil and criminal liability exposure?
A preliminary question must be asked: When making financial investments or entering into financial transactions, why should adherence to the normative principles of Shariah require any special or heightened scrutiny in relation to civil or criminal liability exposure? The most immediate answer is that, according to the proponents and practitioners of SCF, Shariah is not simply an approach to interest-free, ethical investing — although it has been described in promotional literature as such. Instead, SCF is invariably described by SCF proponents, practitioners, and scholars, as the contemporary Islamic legal, normative, and communal response to the demands of modern day finance and commerce.[59]

As understood on its own terms or by the many constituencies who interpret it, Shariah is not predicated upon a personal or subjective understanding of what it means to be a Muslim. Neither is it simply an objective formal law or behavioral code regulating finance and commercial transactions. Shariah has been described as “holistic”[60], as “designating good order, much like nomos”[61], and definitively by Joseph Schacht, the founding father of modern scholarship treating Islamic jurisprudence as a distinct academic discipline, as “[t]he sacred law of Islam [which] is an all-embracing body of religious duties rather than a legal system proper; it comprises on an equal footing ordinances regarding cult and ritual, as well as political and (in the narrow sense) legal rules.” [62]

In one of the first and still important academic presentations of this new industry, Professors Frank Vogel and Samuel Hayes, both distinguished professors at HarvardUniversityand proponents of SCF, explain that Shariah is not some personalized, subjective, pietistic approach to Islam but an institutionalized legal-political-normative doctrine and system:

Islamic legal rules encompass both ethics and law, this world and the next, church and state. The law does not separate rules enforced by individual conscience from rules enforced by a judge or by the state. Since scholars alone are capable of knowing the law directly from revelation, laypeople are expected to seek an opinion (fatwa) from a qualified scholar on any point in doubt; if they follow that opinion sincerely, they are blameless even if the opinion is in error.[63]

This classical understanding of Shariah has been echoed by almost all of the scholars who have written on the subject.  Two prominent advocates of SCF, one a leading professor of finance in Australia and the other a senior official in the Bahrain Ministry of Finance and National Economy, describe the all-encompassing nature of Shariah in their way:

Since Islamic law reflects the will of God rather than the will of a human lawmaker, it covers all areas of life and not simply those which are of interest to a secular state or society. It is not limited to questions of belief and religious practice, but also deals with criminal and constitution matters, as well as many other fields which in other societies would be regarded as the concern of the secular authorities. In an Islamic context there is no such thing as a separate secular authority and secular law, since religion and state are one. Essentially, the Islamic state as conceived by orthodox Muslims is a religious entity established under divine law.[64]

Shariah is therefore not strictly speaking a religious legal code where offending or offensive subdivisions or specific areas of law can be isolated and removed from a cauterized corpus juris. Instead, Shariah is understood by the authorities and scholars who interpret it as an indivisible “way of life”[65] which informs a Shariah-adherent Muslim’s entire being and identity as a Muslim[66], including his relationship to his family, the poor, the stranger, the visitor, national political life, the Muslim Umma (or nation), religious ritual, business and financial dealings, and the enemy.[67] While Shariah most certainly includes more than a millennium of legal decisions developed through Islamic jurisprudence and informal code-like compilations developed by the different “schools of jurisprudence”[68], Shariah proper is the overarching authoritative architecture for all Islamic jurisprudence and the specific legal decisions which make up the corpus of what amounts to a juristic body of Islamic dictates and norms.