1. Introduction. – 2. Schacht’s conventional perspective. – 2.1 The myth of freedom of contract. – 3. Freedom of contract in Islamic law. – 3.1 Classical uṣūl al-fiqh and modern Islamic law. – 3.2 Siyāsa Shar’iyya. – 4. What is Islamic finance? – 4.1 Murābaha or the way to formalism. – 4.2 The lost partnership. – 5. Islamic finance law as an autopoietic system.
One of the main misunderstanding to address in approaching Islamic finance as a cultural, economic and legal field of study is the superficial idea that it would consist in the rediscovery of a set of theories and legal practices that date back to the earlier history of Muslim societies. However, there is no clue enabling us to affirm that financial transactions in the Islamic medieval period or during Ottoman ages were structured or entirely compliant with the principles underlying modern Islamic finance tools and there are few substantial relations between the medieval Muslim scholars - and their contribution on the economic thought in Islamic tradition - and the contemporary Islamic economics. Islamic finance is more a ‘modern, all too modern’ phenomenon, created as a fully ideological radical alternative to conventional finance, which stresses pure formalistic differences with the latter.