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Gharar in Post-Formative Islamic Commercial Law: a Study of the Representation of Uncertainty in Islamic Legal Thought

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Gharar in Post-Formative Islamic Commercial Law: a Study of the Representation of Uncertainty in Islamic Legal Thought University of Pennsylvania ScholarlyCommons Publicly Accessible Penn Dissertations 2014 Gharar in Post-Formative Islamic Commercial Law: A Study of the Representation of Uncertainty in Islamic Legal Thought Ryan M. Rittenberg University of Pennsylvania, [email protected] Follow this and additional works at: https://repository.upenn.edu/edissertations Part of the Near Eastern Languages and Societies Commons Recommended Citation Rittenberg, Ryan M., " Gharar in Post-Formative Islamic Commercial Law: A Study of the Representation of Uncertainty in Islamic Legal Thought" (2014). Publicly Accessible Penn Dissertations. 1418. https://repository.upenn.edu/edissertations/1418 This paper is posted at ScholarlyCommons. https://repository.upenn.edu/edissertations/1418 For more information, please contact [email protected]. Gharar in Post-Formative Islamic Commercial Law: A Study of the Representation of Uncertainty in Islamic Legal Thought Abstract This study analyzes the conception of gharar , which is generally translated as either risk or uncertainty, in post-formative Islamic commercial law. According to Muslim jurists, gharar arises from uncertainty in commercial transactions. However, unlike other areas of the Islamic intellectual tradition in which uncertainty engenders errors, the uncertainty associated with gharar enables jurists and counterparties to make informed legal and financial decisions. Nevertheless, gharar is not structurally a form of certainty. In order to understand this interesting paradox and reach a better understanding of representation in general, this study employs discourse analysis to trace the concepts, reasoning methods, and descriptive techniques that Ibn Hazm (d. 1064), Baji (d. 1081), Shirazi (d. 1083), Sarakhsi (d. 1090), Ibn Qudama (d.1223), and Ibn Rushd (d. 1261) use in order to represent gharar . First, this study details how jurists conceptualize the types of uncertainty that engender gharar in commercial transactions. Second, it examines the ways that jurists employ these forms of uncertainty to analyze commercial transactions. This study demonstrates that gharar arises from a privation of thought. This privation mimics the relationship between the identity of thought and referent that produces certainty. Gharar thus indicates how knowledge creates and subsumes uncertainty. Degree Type Dissertation Degree Name Doctor of Philosophy (PhD) Graduate Group Near Eastern Languages & Civilizations First Advisor Joseph E. Lowry Keywords gharar, Islamic law, uncertainty Subject Categories Near Eastern Languages and Societies This dissertation is available at ScholarlyCommons: https://repository.upenn.edu/edissertations/1418 GHARAR IN POST-FORMATIVE ISLAMIC COMMERCIAL LAW: A STUDY OF THE REPRESENTATION OF UNCERTAINTY IN ISLAMIC LEGAL THOUGHT Ryan M. Rittenberg A DISSERTATION in Near Eastern Languages & Civilizations Presented to the Faculties of the University of Pennsylvania in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy 2014 Supervisor of Dissertation ______________ Joseph E. Lowry Associate Professor, Near East Languages & Civilizations Graduate Group Chairperson ______________ Paul M. Cobb Professor, Near Eastern Languages and Civilizations Dissertation Committee Paul M. Cobb, Professor, Near Eastern Languages & Civilizations Jessica Goldberg, Associate Professor, History, University of California, LA Acknowledgements Over the years, I have benefitted greatly from the friendship, support, and guidance of a number of individuals whom I would like to recognize and thank. At Cornell University, I am grateful for my time with Professors Shawkat Toorawa, David Powers, and Munther Younes, who introduced me to the study of Islam and Arabic. At the University of Pennsylvania, I would like to thank Professor Roger Allen, who taught me the beauty of Arabic literature and supported me over the years in innumerable ways. I am also thankful for Professor Richard Zettler’s assistance, which helped me finish the program. I would like to thank Dr. Sue Webber of CWiC for giving me the chance to teach my own course and mentoring me. I would also like to express my gratitude to my committee members–Professors Paul Cobb, Jessica Goldberg, and Joseph Lowry. They offered me invaluable feedback and support throughout the dissertation process. I also owe Professor Joseph Lowry, my advisor, a special debt of gratitude that words cannot hope to repay. Besides reading over several drafts of my dissertation and offering excellent comments, he has provided me with wonderful training, invaluable guidance, and support even when I doubted myself. I am indebted to Linda Greene, Peggy Guinan, and Diane Moderski who made NELC a home and helped me over the years in ways large and small. I would also like to thank Jeffery Arsenault, Nick Harris, Rose Muravchick, Elias Saba, and Kelly Tuttle for many great conversations over fine food and drink. I would not have finished without the love and support of Kameliya Atanasova. Finally, I cannot thank my parents enough for their love and support over the years. My success is largely due to these people and any failings of this study are mine. ii ABSTRACT GHARAR IN POST-FORMATIVE ISLAMIC COMMERCIAL LAW: A STUDY OF THE REPRESENTATION OF UNCERTAINTY IN ISLAMIC LEGAL THOUGHT Ryan M. Rittenberg Joseph E. Lowry This study analyzes the conception of gharar, which is generally translated as either risk or uncertainty, in post-formative Islamic commercial law. According to Muslim jurists, gharar arises from uncertainty in commercial transactions. However, unlike other areas of the Islamic intellectual tradition in which uncertainty engenders errors, the uncertainty associated with gharar enables jurists and counterparties to make informed legal and financial decisions. Nevertheless, gharar is not structurally a form of certainty. In order to understand this interesting paradox and reach a better understanding of representation in general, this study employs discourse analysis to trace the concepts, reasoning methods, and descriptive techniques that Ibn Ḥazm (d. 1064), Bājī (d. 1081), Shīrāzī (d. 1083), Sarakhsī (d. 1090), Ibn Qudāma (d.1223), and Ibn Rushd (d. 1261) use in order to represent gharar. First, this study details how jurists conceptualize the types of uncertainty that engender gharar in commercial transactions. Second, it examines the ways that jurists employ these forms of uncertainty to analyze commercial transactions. This study demonstrates that gharar arises from a privation of thought. This privation iii mimics the relationship between the identity of thought and referent that produces certainty. Gharar thus indicates how knowledge creates and subsumes uncertainty. iv Table of Contents Introduction: The Certainty of Uncertainty 1 I. Aims of This Study 1 II. Representation 3 III. Islamic Epistemology and Representation 10 IV. Methodology 16 V. Secondary Scholarship 21 VI. Jurists and Merchants 25 VII. Outline of This Study 27 Chapter One: The Role of Uncertainty in the Construction of the Identity of Jurists 30 I. Post-Formative Period and Institutionalization Law 32 II. The Jurists, Biography, and Institutional Authority 35 a. Ibn Ḥazm 38 b. Bājī 39 c. Shīrāzī 41 d. Ibn Rushd 42 e. Sarakhsī 44 f. Ibn Qudāma 45 III. Continuity and Uncertainty 47 a. The Commensurability of Meaning at the Level of Genre 53 b. The Commensurability of Meaning at the Level of Legal Opinion 59 c. The Commensurability of Meaning at the Level of Word 61 d. Subjects of Discourse 69 e. History 71 IV. Theoretical Discourses of Islam 74 V. Conclusion 76 Chapter Two: The Conceptualization of Uncertainty 78 I. Gharar as Fraud 83 II. Known-Unknowns, Unknown-Unknowns, and Discourse 86 a. Typologies of Uncertainty 88 b. Sale of the Ma‘dūm and Representation 91 i. Uncertainty with Respect to the Quantity and Quality 93 ii. Uncertainty with Respect to the Delivery 95 iii. Uncertainty with Respect to the Delivery Date 96 iv. Conclusion 97 c. Typologies of Sales 97 III. Primary Forms of Uncertainty 98 a. Uncertainty with Respect to the Delivery Date 98 i. Date Selection 99 ii. Calendar Systems 101 iii. Length of the Period 102 iv. Summary of Uncertainty with Respect to the Delivery v Date 104 b. Uncertainty with Respect to the Good 105 i. Uncertainty with Respect to the Quality 106 ii. Uncertainty with Respect to the Quantity 112 iii. Conclusion of Uncertainty with Respect to the Good 115 c. Uncertainty with Respect to the Delivery 115 i. Fungibility 116 ii. Legal and Economic Effects 117 iii. Mixed Discourses 118 d. Interaction of the Primary Forms 121 IV. Secondary Causes 121 a. Sale of Non-Possessed Goods 122 i. Uncertainty with Respect to the Delivery 123 ii. Double Sales and Certainty 124 iii. Uncertainty with Respect to the Good 126 b. Idiosyncratic Forms of Uncertainty 128 i. The Impossibility of Establishing Ownership 129 ii. Uncertainty with Respect to the Contract and Good 131 iii. Uncertainty with Respect to the Remaining Life 132 V. Conclusion 133 Chapter Three: The Privation of Objects and Thought 139 I. Discursive Levels—Mulāmasa, Munābadha, and Bay‘ al-ḥaṣā 144 a. Paradigmatic Discourse 145 b. Comparative Discourse 148 II. Sales of Milk 150 a. Individuality 151 b. Generality 152 III. Peels, Shells, and Containers 155 a. Objectivity 156 b. Objectivity and Subjectivity 159 IV. Sale of a Runaway Slave 160 a. Delivery and Knowledge 160 b. Fate and Ownership 162 V. Offspring and Breeding Contracts 164 VI. Multiple Contractual Agreements in One 169 VII. Conclusion
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