Arab countries are attempting to broaden their engagement in the multilateral trading system in a manner that has many implications. Not only have some Arab countries either acceded or are in the pipeline of acceding to the World Trade Organization (WTO), but their new commitments coincides with reorientations in their economic strategies. The purpose of this dissertation is to examine the implications on Arab countries.
Given Jordan’s accession to the WTO and its free trade agreement with the United States (U.S.), the country serves as an ideal candidate for other Arab countries. Jordan applied for WTO membership in 1994. After a lengthy and costly process of negotiations, Jordan became a WTO member in 2000. Furthermore, in 2000, the U.S. and Jordan concluded a bilateral trade agreement.
My thesis is that acceding to the WTO and signing a bilateral trade agreement with the U.S. is like choosing between Scylla and Charybdis, because onerous trade liberalization commitments ensue from such actions. The WTO system as an institution may not be perfect. There are deficiencies in the system. However, membership in the WTO could afford better chances compared with bilateral trade agreements like the one between the U.S. and Jordan. Membership in the WTO could help Jordan, in cooperation with other Arab countries, preserve its rights. In current bilateral trade agreements, economic hegemonies such as the U.S. dictate the rules and weave them to their advantage. In sum, I make the case that the alternative to the WTO system is bilateral trade agreements with the U.S., and they are trade agreements in which Arab countries are bound to be disadvantaged.
The dissertation analyzes Islamic law and economics and their relevance to international trade. It studies some of the obstacles Arab countries face in acceding to the WTO. The dissertation also examines the commitments Jordan undertook in its accession to the WTO as a case study for other Arab countries. Finally, the dissertation scrutinizes the United States-Jordan Free Trade Agreement.
TABLE OF CONTENTS
ABSTRACT
ACKNOWLEDGMENTS
LIST OF TABLES
INTRODUCTION
CHAPTER I. ISLAMIC LAW AND INTERNATIONAL TRADE
I. Links to the Past
A. Sources of Law in Islam
II. The Role of Islamic State
A. The Administration of Tariffs in the Early Islamic State
B. Market Agents and Forces in Islam
III. Limitations on Free Trade in Islamic Law
IV. Ibn Khaldun and the Theory of Commercial Policy
Conclusion
CHAPTER II. ARAB COUNTRIES AND THE WORLD TRADING ORGANIZATION
I. History of International Trade in Arab Countries
II. Lebanon and Syria in GATT
III. Arab Countries and UNCTAD and WTO
IV. The Uruguay Round
V. The League of Arab States and the Boycott to Israel
VI. Arab countries Accession to the WTO: Playground of Politics
VII. WTO Technical Assistance and Arab Countries
VIII. The Venue of the Fourth WTO Ministerial Conference: Qatar (2001)
IX. Trade Patterns of Arab Countries
X. The Impact of the International Trading System on Arab Countries
A. Agriculture
B. State-Owned Enterprises
C. International Trade in Oil
XI. Data on the Application of Arab countries of Selected WTO Provisions
XII. Representations in the WTO and Delegations of Arab Countries
XIII. Arab Public Opinion and the WTO
XIV. Arab Countries Regional Trade Initiatives
Conclusion
CHAPTER III. JORDAN BID FOR ACCESSION TO THE WTO
I. General Background
II. Characteristics of the Jordanian Economy
III. Economic Reform
IV. International Trade Regulation in Jordan
Conclusion
V. Jordan: The Process of Accession to the WTO
VI. Protocol of Accession and WTO Commitments
A. Market Access in Goods
1. Tariff Reduction
2. Agriculture
3. Trade Remedy Laws
4. Customs Law
4.1 Tariff Classification and Valuation
4.2 The Harmonized Tariff Schedule of Jordan
5. Pre-Shipment Inspection
B. Market Access in Services
C. Protection of Intellectual Property in Jordan
1. Copyright Law
1.1 Exclusive Rights
1.2 Moral Rights
1.3 Exceptions
1.4 Copyright Term197 1.5 Remedies
2. Trademarks
2.1 Well Known Marks
2.2 Parallel Importation
3. Patents
3.1 Compulsory Licensing
3.2 The Jordanian Pharmaceutical Industry and the TRIPs Agreement
4. Enforcement of Intellectual Property Rights
D. Commitments of Jordan in Relation to Transparency
E. Other Selected Commitments
Conclusion
CHAPTER IV. The U.S.-Jordan Free Trade Agreement
I. The US-JO FTA: Introduction
II. The Terms of the US-JO FTA
A. Trade in Goods
B. Trade in Services
C. TRIPs-Plus commitments in the US-JO FTA
1. Trademarks and Geographical Indications
2. Copyright and Related Rights
3. Patents
4. Data Exclusivity and Pharmaceuticals
5. Enforcement of Intellectual Property Rights
6. General observations
D. Balance of Payments
E. The US-JO FTA and Electronic Commerce
F. Visa Obligations in the US-JO FTA
G. Government Procurement
H. Trade Remedy Measures of the US-JO FTA
I. Rules of Origin in the US-JO FTA
J. Consultations and Dispute Settlement Mechanism
1. The Joint Committee of the FTA
2. Consultations
3. Standard of Review
4. Establishment of a Panel and its Procedures
K. General and Security Exceptions under the US-JO FTA
L. Miscellaneous Articles of the US-JO FTA
III. Implementations and Expectations
Conclusion
IV. The Social Clause of the U.S.-Jordan Free Trade Agreement
A. Environmental Protection and the US-JO FTA
B. Labor Protection and the US-JO FTA
Conclusion
Assessments and Conclusions
Appendix
Works Cited
ABSTRACT
Arab countries are attempting to broaden their engagement in the multilateral trading system in a manner that has many implications. Not only have some Arab countries either acceded or are in the pipeline of acceding to the World Trade Organization (WTO), but their new commitments coincides with reorientations in their economic strategies. The purpose of this dissertation is to examine the implications on Arab countries.
Given Jordan’s accession to the WTO and its free trade agreement with the United States (U.S.), the country serves as an ideal candidate for other Arab countries. Jordan applied for WTO membership in 1994. After a lengthy and costly process of negotiations, Jordan became a WTO member in 2000. Furthermore, in 2000, the U.S. and Jordan concluded a bilateral trade agreement.
My thesis is that acceding to the WTO and signing a bilateral trade agreement with the U.S. is like choosing between Scylla and Charybdis, because onerous trade liberalization commitments ensue from such actions. The WTO system as an institution may not be perfect. There are deficiencies in the system. However, membership in the WTO could afford better chances compared with bilateral trade agreements like the one between the U.S. and Jordan. Membership in the WTO could help Jordan, in cooperation with other Arab countries, preserve its rights. In current bilateral trade agreements, economic hegemonies such as the U.S. dictate the rules and weave them to their advantage. In sum, I make the case that the alternative to the WTO system is bilateral trade agreements with the U.S., and they are trade agreements in which Arab countries are bound to be disadvantaged.
The dissertation analyzes Islamic law and economics and their relevance to international trade. It studies some of the obstacles Arab countries face in acceding to the WTO. The dissertation also examines the commitments Jordan undertook in its accession to the WTO as a case study for other Arab countries. Finally, the dissertation scrutinizes the United States-Jordan Free Trade Agreement.
ACKNOWLEDGEMENTS
This work would not have been achieved without Allah’s guidance to give me the will and health to pursue this endeavor. Although I believe in “the Bicycle Theory” of international trade, meaning the trading system should move forward without stopping as trade negotiations proceed, otherwise, risk standstill and falling; I would like to thank some people where the bicycle that I ride made major stops before launching a new stage. For those whose names are not mentioned in these stops, minor or major, I ask your forgiveness for not mentioning yours at this time.
In the final stop, my deepest and sincere gratitude goes to Professor Padideh Ala’i, my mentor, in Washington D.C for devoting hours of her time to discuss my work. Many thanks for her critical comments, encouragement, and advice. Believing also in the most-favored-nation rule, meaning any advantage or privilege extended to one party must be extended to other parties, my same deepest and sincere gratitude goes to Professor David A. Gantz in Arizona for giving me the chance to be here from the outset, and for his constructive guidance. My first exposure to the world of international trade law was by his hand that left upon me a lifetime impression. I also thank Professors Jerry Levinson, Christine Farley, and Mohammad Mattar, American University Washington College of Law for their comments. I am also indebted to Donna B. Butler of American University Law School and Deborah Beaumont, library specialist at the University of Arizona College of Law for their comments on earlier drafts of this work. I also would like to thank Eleazar Jimenez Esq. of Sonora, Mexico and Cristos Velasco Esq. of Mexico City, Mexico for their input on NAFTA. My thanks also go to Dr. Yasser K. Hamed of Minnesota, and Betty R. Thomas of Michigan for their unforgettable assistance. My appreciation is due to Robert and Martha Ludwig in Colorado, Ronald and Roemae Canfield in UTAH, Charles and Dorothy Sutherland in California, Bill and Kay Trowbridge in Idaho, and the bicycle will keep pedaling. Finally, I would like to acknowledge the Hashemite University for sponsoring my study at American University Law School.
TABLES
Table Page
1. Multilateral Trade Negotiations Round
2. Total Arab Countries Exports and Imports as of 1999
3. Trade Patterns of Arab Countries as of 1999
4. Sectoral Contribution in Gross Domestic Production
5. Budget Balance (in millions of JD)
6. Trade Balance (in millions of JD)
7. Foreign Aid (in millions of JD)
8. Jordan Harmonized Tariff Schedule (2004)
9. Trade with Jordan in 2003 (in millions of U.S. Dollars)
10. Value of The Leading 6 U.S. imports from Jordan under Different Trade programs
INTRODUCTION
The purpose of this dissertation is to examine the implications of the international trading system to Arab countries. Given Jordan accession to the WTO and its free trade agreement with the United States (U.S.), the country is an ideal candidate to serve as a case study for other Arab countries. Jordan applied for WTO membership in 1994. After a lengthy and costly process of negotiations, Jordan became a WTO member in 2000. Furthermore, in 2000, the U.S. and Jordan concluded a bilateral trade agreement My claim is that acceding to the WTO and signing a bilateral trade agreement with the U.S. is like choosing between Scylla and Charybdis, because onerous trade liberalization commitments ensue from such actions. The WTO system as an institution may not be perfect. There are deficiencies in the system. However, membership in the WTO could afford better chances compared with bilateral trade agreements like the one between the U.S. and Jordan. Membership in the WTO could help Jordan, in cooperation with other Arab countries, preserve its rights. In current bilateral trade agreements, economic hegemonies such as the U.S. dictate the rules and weave them to their advantage. In sum, I make the point that the alternative to the WTO system is bilateral trade agreements with the U.S., and they are trade agreements in which Arab countries are bound to be disadvantaged.
Historically, the study of international trade (law) in Arab countries was an obscure subject for a handful of economics specialists. This dissertation will help pinpoint the lacunae in this kind of scholarship by cutting across many subjects, using multiple methodologies and interdisciplinary approaches, such as religion, naked economics, and law- international as well as domestic. The dissertation will pave the way for a new scholarship that involves international trade legal economists in addition to agricultural economists, industrial economists, political economists, or econometricians.[1] Therefore, it is hoped that this dissertation will contribute to an understanding of the under-studied international trade law in Arab countries.
ROADMAP
The dissertation will proceed in five chapters. Chapter I analyzes Islamic law and economics and their relevance to international trade. It discusses Islamic thought on matters such as reciprocity, taxes, subsidies, price mechanisms, and role of the state. Chapter I concludes by proving that Islamic law is inclined toward free trade. However, Islamic law sets out limitations on free trade. International trade in Islamic law is trade with what might be termed as Islamic purifier.
Chapter II explores trade patterns of Arab countries. It addresses some of the obstacles Arab countries face in acceding to the WTO. Chapter II also examines the effects of accession to the WTO on selected sectors such as agriculture and oil for Arab countries. Chapter II concludes that Arab countries are not active participants in the WTO work. Arab countries also lack effective missions in Geneva solely dedicated to the work of the WTO. Moreover, the dream of Arab regional trade agreement or common market has not come true, despite the fact that free trade once profoundly reigned in the region, and despite the fact that many Arab countries are bound together by ties of common culture, ethnicity, and language.
Chapter III addresses the status of international trade agreements into the domestic law of Jordan. It also tackles the relationship between the National Assembly, the executive branch, and the judiciary in respect of international trade, and the bodies in Jordan that have the power to enter into international agreements. It touches on the legal effects of international agreements, and the cases where international agreements prevail over domestic law. Chapter III also offers insights into Jordan’s accession to the WTO. Further, it uncovers commitments Jordan undertook in its accession to the WTO as a case study for other Arab countries. Chapter III concludes that government agency conflict in Jordan appears in the overlapping jurisdictions of the different executive authorities rather than between the executive and the National Assembly. In its accession, Jordan undertook onerous terms and conditions as a price for accession to the WTO. Jordan did not benefit from any transitional period in its accession to the WTO except in implementation of commitments on tariff reduction. Jordan met some of its WTO commitments at the time it entered the WTO. However, Jordan was committed to meet other requirements after accession over time. Many areas of implementation of the WTO agreements require heavy administrative and financial investment.
Chapter IV scrutinizes U.S.-Jordan Free Trade Agreement including its environmental and labor provisions. Chapter IV concludes that the bilateral trade agreement between the U.S. and Jordan will lead to trade dependency on the U.S. market. The approach adopted in drafting the bilateral trade agreement is a cut and paste approach in which U.S. laws were incorporated into the agreement with few changes in article, numbers or words. The entire bilateral trade agreement was an adhesion or unconscionable contract submitted by the U.S. as a fait accompli. Jordan was a “rule-taker” rather than a “rule-maker”. The parties in the trade agreement entered into asymmetrical commitments in areas such as services and intellectual property.
Chapter IV concludes that the free trade agreement between the U.S. and Jordan would have been of little value, giving the volume of trade between the parties, except for including environment and labor within the text of the agreement. The U.S. acted as demander for including labor and environment within the free trade agreement. The environmental and labor provisions of the free trade agreement represent material steps in advancing the environmental and labor agenda by linking the free trade agreement with non-trade provisions. However, these articles fall short of expectations. The trade agreement does not prohibit the parties from encouraging trade by relaxing domestic environmental and labor laws. Instead, the free trade agreement simply urges the parties not to relax their laws. Free trade agreement does not define the relationship between the trade agreement and the multilateral environmental agreements. The free trade agreement includes a scapegoat clause that allows each party not to effectively enforce its environment or labor laws on the basis of reasonable exercise of discretion or bona fide decision to allocate resources. Chapter IV concludes that environment and labor will be, as they have traditionally been viewed, secondary to trade agreements. The U.S. should not use Jordan as a pawn to advance its own agenda on environment and labor. In Islamic jurisprudence, there are historical links to trade.
CHAPTER I
ISLAMIC LAW AND INTERNATIONAL TRADE
I. Links to the Past
As for the sea, we hold it is as the way of dry land. Allah said:[2]
Allah it is who subdued to ye the sea that vessels may sail thereon by his command and that ye may seek of his bounty. Therefore, he has given permission that he who wills may trade thereon and I hold that no obstacle shall be placed between it and any of the people. For the dry land and sea alike belong to Allah. He has subdued them for his servants to seek of his bounty in both of them. How then should we intervene between Allah’s servants and their means of livelihood?[3]
Muslims believe that Islam is the last religion. Islam is called the seal of religions. Islam, unlike the Talmud for Orthodox Judaism or Bible in Christianity, not only covers moral or spiritual teachings, but also it covers every aspect of life such as trade. Islamic shari’a places religion as well as economics in the consciousness of Muslims. Therefore, Islam is comprehensive in coverage. Some rules in Islam may be stretched out to meet current issues while maintaining certain core principles as static.[4] Indeed, Islam is a durable living force.
Free trade is about people selling and buying as they want without barriers or obstacles. Free trade has links in Islam. This proposition is to refute any doubt that free trade is alien to Arab countries and a response to the myth that Islamic law is passé or just is not applicable to modern trade law. This proposition is also an opportunity to discuss matters beyond interest, the centerpiece of Islamic economics.[5] However, Islamic law and economics do not adopt free trade as the single theorem per se or economic code of Islam. There are limitations on free trade in Islam such as prohibition of trade in pork and alcohol. International trade in Islam is trade with an Islamic “purifier”. This is an Islamic market economy.
According to the teachings of the Prophet Muhammad (s.a.w), the pursuit of trade and profit are not inferior but honorable.[6] Allah’s choice of prophet, who was a trader by profession from a trading society, highlights the importance of trade.[7] The dominant tribe in Mecca, Quraysh, earned its livelihood for decades selling commodities for a profit.[8] Camel caravans, originating in the Middle East, are well known in history for travel along major trade routes.
The holy Qur’an is filled with numerous verses using the language of trade. For instance, it states, “O ye who believe! Eat not up your property among yourselves in vanities; But let there be amongst you traffic and trade by mutual good will”.[9] This verse signifies trade on the basis of mutual consent free from undue interference. The Qur’an also states, “For the covenants (Of security and safeguard Enjoyed) by the Quraysh, Their covenants (covering) journeys by winter and summer- Let them adore the Lord of this House, Who provides them With food against hunger, And with security Against fear (of danger)”.[10]
Discussion of international trade and its relevance will be limited to Islamic law.[11] However, before discussing Islamic law and its relation to international trade it would be helpful to provide a background of Islamic law, one of the world’s major legal systems along with Jewish law (Halacha), civil law, and common law. The Discussion of Islamic law and its sources is essential to understanding the importance of these sources on the relationship between free trade and Islam.
A. Sources of Law in Islam
The law or shari’a in Islam may be thought of as being composed of at least two parts: revealed and non-revealed.[12] The revealed form of shari’a has two proper sources: the Qur’an (the holy book) and the sunna (traditions based on the hadith, sayings and actions of the prophet).[13] Non-revealed sources of shari’a, developed by Muslim jurists after the revelation of the Qur’an and the sunna, include ijma (consensus of Muslim scholars on a point of law) and qiyas (a sub- ijtihad species of strict analogical reasoning). These are the authoritative sources of jurisprudence (usul al-fiqh).[14] Usul al-fiqh incorporates both deductive (from broad general principles in the law to a particular case) and inductive (from a particular case to general principles) methods of reasoning.
Other sources of non-revealed shari’a include ijtihad (individual intellectual effort and wider independent reasoning), istihsan (equity or juristic preference), istishab (presumption of continuity), istislah or maslaha (opinion based on public interest), darura (necessity), urf (custom), and fatwa giving (responsa) of muftis (jurisconsults) such as the Egyptian grand mufti Muhammad ‘Abduh.[15]
To establish direct support for a legal proposition a Muslim legal scholar should be able to pinpoint to a verse of the Qur’an, or at least a tradition or hadith of the Prophet Muhammad (s.a.w). While the Qur’an provides the written law, the sunna supplies a sort of case law, consistent with the Qur’anic text. The sunna embodies the application of the Qur’an’s written law to concrete disputes and hypothetical questions that arose during the prophet’s life. Some sunna cases simply explain the Qur’anic principles and rules. Some cases interpret the Qur’anic text by providing new insights into the written law. Some provide new principles and rules, supplementing the Qur’an’s protected knowledge.
If direct support of a legal proposition in the Qur’an and sunna is not possible, then a Muslim legal scholar seeks an instance when all legal scholars or jurists agree on a particular point of law or interpretation. Consensus may be relied upon as a valid source of law. Use of analogical reasoning, qiyas, is quite strict. First, one must find a verse in the Qur’an, a sunna of the prophet, or a rule on which consensus was achieved as the point of departure. Then the direct cause, purpose or rationale, narrowly conceived, must be determined, and the relationship between the two concerns, the one in which there is a rule and the one to which one is considering extending the rule, must be elucidated in such a way as to demonstrate that the rule should be extended. For example, the Qur’anic prohibition of drinking wine extends to other alcoholic beverages without concern about gray areas. On the other hand, the relaxation of the duty to fast in cases of illness and traveling cannot be extended so easily.[16] Applying the concept of hardship to the deliberation is not helpful because travelers would not always find fasting a hardship. Moreover, hardship is a very broad and fuzzy concept. The divine purpose or cause of the rule is not mere hardship, and so extension of the relaxation would not be discrete or defined.
All Muslim scholars agree that the Qur’an is the core of Islamic law. However, there is disagreement among them about the rank of other sources of Islamic law. Consequently, there have arisen four main schools of law in Sunni: the Hanafi, Maliki, Shafi’i, and Hanbali.[17] Hanafi scholars rely on reason and opinion, using analogy and equity as sources of law. The Maliki school requires strict application of the sunna of the Prophet and minimizes the role of opinion. The Shafi’i school has tried to reconcile the Maliki and Hanafi principles.[18] The Hanbali school is well known for its strict adherence to the text of the Qur’an and the sunna. Analogy is recognized as a source of Hanbali law.
The shari’a tries to describe all possible human acts, classify it as obligatory, recommended, neutral, objectionable, or forbidden by Allah (s.w.t), the supreme legislator.[19] Islamic law addresses matters ranging from the timing of daily prayers and prohibitions against eating certain foods to marriage, inheritance, and commerce. The Qur’an speaks much more explicitly and completely about personal status (marriage and inheritance), morality, and an individual’s relationship with Allah (s.w.t) than it does about commerce.[20]
With respect to the daily, private lives of all Muslims, Islam has five pillars that are the essential obligations. These are: (1) the profession of faith (the Shahada which affirms monotheism in its first part, and the authenticity of Prophet Muhammad (s.a.w) in its second part as it states that “There is no God but Allah; Muhammad is the messenger of Allah”), (2) regular prayer (called salat which is performed five times a day), (3) compulsory charity (called zakat), (4) fasting during the month of Ramadan (called sawm), and (5) pilgrimage (the Hajj).[21]
II. The Role of Islamic State
Medina, known previously as T¯abah, was much poorer than Mecca because its people were not merchants. Medina had no pilgrimage destination like the Ka'ba. Medina also experienced deep-rooted enmity between groups of its citizens.[22] After his arrival in Medina, Prophet Muhammad (s.a.w) established a Mosque (Masjid) for worship and education. His next act was to create a new set of trade regulations. These were based on the principles of no restrictions.[23] Neither did Prophet Muhammad (s.a.w) nor did the four Rightly-Guided Caliphs (Al-Rashidin) who succeeded him, directly engaged in trade and competition.[24] They regulated trade so as to prevent unfair trade, deception or fraud.[25] However, later Islamic governments tempted by profitability, competed with enterprises to the detriment of their societies.
In Islamic society, like in most others, some have more resources than others and some are gifted with more abilities than others.[26] In other words, people are not equal in terms of resources and abilities. The role is for the individual himself to make an effort in the direction of increasing his share.[27] Many Muslim jurists agree that a Muslim must do his utmost to earn a livelihood.[28] They assert the negative effects of subsidies. Muslim jurists tend not to support the arguments made for subsidies that they alleviate poverty and increase equality and efficiency.[29] By the same token, infant industries should not depend on state subsidies. Subsidies should be temporary. Nevertheless, the Islamic state has the role of addressing social injustice through available mechanisms such as Zakat, Islamic rules of inheritance, and taxes. These mechanisms can be used to redistribute wealth.
The role of the early Islamic state was confined to provide necessities such as public services and law enforcement.[30] The state should be a minimal state in terms of being involved in trade.[31] The state should not be in the business of making profit. When the Islamic state relaxes its grip on trade, prosperity may flourish for society.
[...]
[1] No graphs, equations, or complex diagrams will be used, just plain English. See Richard C. Wydick, Plain English for Lawyers (4th ed., Academic Press 1998). Most economics texts rely far too much on algebra manipulation, complex diagrams, equations, excessive use of mathematics, and inaccessible jargon. For more see Charles Wheelan, Naked Economics: Undressing the Dismal Science X, XVII (Norton & Company 2002).
[2] The perspective presented in this chapter is neither perfect nor an oversimplification of a complicated topic. The researcher is not a scholar of Islam and certainly learns about Islamic teachings on a daily basis. The whole history of trade in Islam will not be discussed in this chapter. This chapter will not involve a process whereby selective ideas are extracted from Islamic law to claim that Islam and free trade are the same. This chapter is suitable for Westerners who may not have heard about Islam and free trade until recently, but not Arabs who may know it well. This chapter also serves to endear the topic to the ears of Arabs because they do need to look back in order to move forward. Moreover, the purpose is to write a chapter that would invigorate the reader to explore, beyond the scope of the chapter, the question of trade and Islam.
[3] Sermon delivered by the Caliph ‘Umar Ibn ‘Abd Al-‘Az¯iz. See Al-Khal¯ifah Al-‘¯adil ‘Umar Ibn ‘Abd Al-‘Az¯iz, Kh¯amis Al- Khulaf¯a’ A R¯ashid¯in [The Fifth Rightly-Guided Caliph ‘Umar Ibn ‘Abd Al-\ ‘Az¯iz], Li-Ab¯i Muhammad ‘Abd All¯ah Ibn ‘Abd Al-Hakam; Riw¯ayat Ibnihi Ab¯I ‘Abd All¯Ah Muhammad, Mur¯aja’ah Wa-ta’l¯iq Ahmad ‘Abd Al-Taww¯ab ‘Awad 101 (D¯ar al-Fad¯ilah 1994).
[4] These core principles are stated in the discussion of sources of law in Islam, p. 15.
[5] See Timur Kuran, The Discontents of Islamic Economic Morality, 86 Am. Econ. Rev. 438, 439 (1996) (Islamic economics is dedicated to restructuring economic thought and practice on the basis of fundamental Islamic teachings. Its founders were Indian Muslims in the 1940s. Sayyid Abu ‘l-A’la Maududi coined the term “Islamic economics” around the time of India’s partition. Afterward, Pakistanis have made the largest contribution to the literature. The blanket prohibition against interest became the centerpiece of Islamic economics. Attention then turned to issues such as rules of barter, rights of slaves, and transactions. The intended effect of Islamic economics is to reform human nature. The goal of Islamic economics is to transform selfish and acquisitive Homo economicus into a paragon of virtue, Homo Islamicus). Although interest and Islamic banking is the first and perhaps the most interesting application of Islamic economics relevant to modern times, interest and Islamic banking has been written about to death.
[6] S.A.W letters are abbreviations for the Arabic words “Salla Allahu ‘Alaihi Wa Sallam”. It is an Islamic term of respect typically following a reference to the name of the Prophet Muhammad. “Peace be Upon Him” is used by English speaking Muslims. However, “Peace be Upon Him” does not give full meaning to “Salla Allahu ‘Alaihi Wa Sallam” words. Therefore, the words “Salla Allahu ‘Alaihi Wa Sallam” should be used. See Glossary of Islamic Religious, Banking & Financial Terms, 6 J. Islamic L. & Culture 135, 148, 150 (2001). To determine if profit is profiteering, there must be an analysis of prevalent market prices and trading practices among similar merchants.
[7] See Chibli Mallat, Commercial Law in the Middle East: Between Classical Transactions and Modern Business, 48 Am. J. Comp. L. 81, 92 (2000) (a long-standing tradition of Islamic civilization is its association with and the centrality of trade. The tradition relating to the other great monotheistic epigones in the figures of Abraham and Jesus does not acknowledge the centrality of trade and commerce in any similar way. In the case of Jesus, the episode of the Temple merchants even points in the opposite direction, with the mercantile pursuit of wealth depicted in a derogatory manner. Neither classical Christianity or Judaism seems to have extolled the virtues of commerce in such a detailed or enthusiastic argument for the commercial professions as did Dimashqi in his Mahasin al-tijara, The Virtues of Commerce).
[8] See Gene W. Heck, The Economic Dynamic of the Early Islamic State 43-44 (1995).
[9] See Qur’an 4:29. See also Qur’an 2:282, 17:66, 24:37, 35:28, and 62:11.
[10] Id. 106:1-4. The historical background of these verses is that the Quraysh, the dominant tribe in Mecca, conducted international trade by setting out two caravan journeys, one from Mecca to the warmth of Syria in summer and the other to the cooler Yemen in winter, to sell cheaper leather and clothing than those made in Syria and Yemen. Thus, trade provided them with a living. However, for the safety of these caravans, trade agreements were concluded with the tribes on the routes. In return, the Quraysh, agreed to collect these tribes’ goods to sell, and on the way back hand them over other goods. See Patricia Crone, Meccan Trade and the Rise of Islam 109, 205-209 (Princeton U. Press 1987).
[11] For a Christian biblical and theological themes on international trade see Daniel Rush Finn, Just Trading: On the Ethics and Economics of International Trade 47-87 (Abingdon Press 1996) (stating that it would be a serious mistake to expect to find in the biblical sources a neatly transferable ethic of international trade for Christians today. At the same time, however, it would be a mistake to presume that international trade is a purely modern phenomenon).
[12] Shari’a is an Arabic word meaning way. The shari’a was compiled during the first three centuries after Muhammad’s (s.a.w) death. See Ahmed Zaki Yamani, The Eternal Shari’a, 12 N.Y.U. J. Intl. L. & Pol. 205, 205-06 (1979).
[13] The Qur’an is divided into 114 chapters, known as surahs. Each surah is divided into verses, called “ayas” which mean “signs”, referring to signs from and of Allah. There are roughly 6000 verses. See Bhala, infra n. 21, at 680.
[14] See William M. Ballantyne & Howard L. Stovall, Arab Commercial Law: Principles and Perspectives 28-30 (ABA 2002). See also John Walbridge, Logic in the Islamic Intellectual Tradition: The Recent Centuries, Vol. 39 No. 1 Islamic Stud. 55, 68 (2000) (Islamic law is divided into two disciplines: fiqh, which the content of the sacred law, and usul al-fiqh, the principles by which it is deduced. Usul is a system of rules by which new law is derived from a fixed body of source materials. It deals with such problems as how to derive a general rule from a known particular case, how words can legitimately be interpreted, and so on).
[15] See Hasbullah Haji Abdul Rahman, The Origin and Development of Ijtihad to Solve Modern Complex Legal Problems, Vol. 43 The Islamic Q. 73, 75-76 (No. 2, 1999) (ijtihad must not be exercised as to the existence of Allah, the truism of the prophets of Allah, and the authenticity of the Qur’an. To exercise ijtihad a Muslim has to be knowledgeable of the Qur’an, sunna, and usul al-fiqh. A Muslim also must be a good Muslim, pious and law-abiding, and not influenced by heresy, just, and reliable). See also Islamic Legal Interpretation: Muftis and their Fatwas 4-32, 286-296 (Muhammad Khalid Masud et al. eds., Harvard U. Press 1996) (a fatwa is a nonbinding advisory opinion to an individual questioner (mustafti) in connection with ongoing human affairs. A fatwa may cover issues concerning mosques, intergenerational transmission of property, and marriage of children, and banking operations and interest. Fatwa began as a private activity that was independent of any state control before being transformed into a mechanism of religious legitimization. The formulation of fatwa is patterned after a question-answer model. Important muftis in the pre-modern era were Mu’adh b. Jabal, Ibn ‘Abbas, and Ibn Rushd. Modern era muftis include Muhammad Sayyed Tantawi, grand mufti of the Egyptian Republic and head of Dar al-ifta’, Makhluf (Fatwa Office), al-Qaradawi, and ‘Abd al-‘Aziz b. ‘Abd Allah Ibn Baz.). An example of the use of fatwa as a mechanism of religious legitimization is the plan of Egypt’s Ministry of Religious Affairs in 2004 to connect all 5,000 of Cairo’s mosques to a city-wide wireless network, so that five times a day the Muslim call to prayer [ adhan ] could be broadcast in a single voice, in the same instant. To counter criticism for the idea as bid’a (irreligious innovation), the Ministry obtained several fatwas.
[16] See Gamal M. Badr, Islamic Law: Its Reaction to Other Legal Systems, 26 Am. J.Comp.L. 187, 189 (1978).
[17] Islam embraces two principal branches: Sunnism, the majority faith, and Shi’ism. The most important group in Shi’ism is the Twelvers. Other Shi’ism schools include Ismailism and Zeydism. See Yann Richard, Shi’ite Islam: polity, ideology, and creed 1, 5-9 (Antonia Nevill trans., Blackwell 1995) (Shi’ites are Muslims, like the Sunnis, but there are differences between them. Unlike Sunnism which insists on the arbitrary will of Allah, Shi’ism proclaims that Allah can only act within the bounds of justice. The Imam in Shi’ism plays a fundamental role in the relations between Allah and man. Moreover, Shi’ite doctrines are based on collections of traditions quite distinct from those of the Sunnis. Shi’ite doctrine varies noticeably from Sunni as regards inheritance and marriage). See David Bonderman, Modernization and Changing Perception of Islamic Law, 81 Harv. L. Rev. 1169, 1174 (1968) (schools of law in Sunni appeared in the first and second centuries of Islam. They developed initially due to geographical separation-one at Medina, one at Kufa in Iraq, one in Syria- for example. After a few centuries, each school became personalized and took the name of its leading scholar. Each school developed its own body of legal doctrine, but they were similar in broad precepts. They disagreed as to particular points of law).
[18] Al Shafi’i, the founder of al- Shafi’i law school, has been known as the founder of Islamic jurisprudence. He was the first jurist to compile and systematize Islamic sources of law.
[19] S.W.T letters are abbreviations of the words “Subhanahu Wa Ta’ala” which means that Allah is purified of having partners or sons. When the name of Almighty Allah is pronounced, a Muslim is to show his respect to him by reciting these words. See Glossary of Islamic Religious, Banking & Financial Terms, supra n. 6, at 153.
[20] For an interesting discussion of Islamic law see M. Cherif Bassiouni & Gamal M. Badr, The Shari’ah: Sources, Interpretation, and Rule-Making, 1 UCLA J. Islamic & Near E. L. 135, 149 (2002) (the Qur’an and the sunna contain the greater number of norms applicable to the areas of criminal law, family law, contracts and obligations, procedure, and inheritance law as compared to other subjects within the mu’amalat category (societal relations and individual interactions). Being a book [Qur’an] of spiritual guidance and not a legal code, it is not surprising to find only 500 verses with legal content).
[21] See Raj Bhala, Theological Categories for Special and Differential Treatment, 50 U. Kan. L. Rev. 635, 677 (2002). Muslims, both Sunnis and Shi’ites, are under the ritual obligation to accomplish hajj to the holiest sites in Mecca at least once in their lifetime. Shi’ites give importance to visiting the tombs of saints. The great centers of Shi’ite pilgrimage in Iraq are Karbala, Najaf, Samarra, and Kazemeyn. The great center of Shi’ite pilgrimage in Iran is Mashhad. See Richard, supra n. 17, at 8-9.
[22] See Muhammad Al-Ghazali, Understanding the Life of the Prophet Mohammad 155 (Intl. Islamic Fedn. Student Org. 1997). Due to the sanctuary of Mecca, trade created an environment where rivalry was foregone even among enemies. Qur’an states, “Nor wickedness, Nor wrangling In the Hajj. It is no crime in you If ye seek of the bounty Of your Lord (during pilgrimage)”. See Qur’an 2:197-198.
[23] After the persecution of the newly Muslims at the hand of the people of Mecca became unbearable, Allah ordained the Muslims to migrate, Hijra, to Medina. See Abd Assamii Al-Misry, Al-Masrif Al-isl¯Am¯i `llm¯iyan Wa-`Amal¯iyan [Islamic Bank in Theory and Practice] 7 (Maktabat Wahbah 1988) (ranking free trade as the first characteristic of the new regulations in Medina followed by justice, avoidance of cheating, and monopolies).
[24] Caliph Umar said that the ruler should not trade because when he involves himself in trade he has it entirely for himself and to the detriment of others, even if he does not like to do so. See ‘Ubayd, supra note 3, at 103.
[25] Prophet Muhammad (s.a.w) objected to some cases of deception, known in Islam as Najsh, when one raises the prices of goods, in an auction, without the intention of buying. He considered the practice improper. See KHAN, infra n. 42, at 198. Other example of objections involved alteration of measure and weight in goods. The Qur’an commands that full measure and weight be given fairly in trade. The Qur’an states, “Woe to those who when they have to give by measure or weight to men, give less than due”. See Qur’an 83:1-3. Prophet Muhammad (s.a.w) acted in determining the measures upon verse 83:3. A special institution was established in Islam, known as al-hisba, to regulate standards and measures of goods to prevent deception for consumers. Additionally, Islamic jurisprudence prohibits selling below market price. For example, Caliph Umar bin al-khttab directed another person, who sold goods below the price available in the market, and demanded him either to raise the price or to leave the market. See Munazzmat Al-Mu'tamar Al-Isl¯am¯i, infra n. 48, at 118, 163.
[26] The Qur’an states, “It is He Who hath made You (His) agents, inheritors of the earth: He hath raised You in ranks some, above others”. See Qur’an 6:165. The Qur’an also states, “Allah has bestowed His gifts Of sustenance more freely on some Of you than others”. See Qur’an 16:71, 4:32. See also Sayyid Abu ‘L-A’la Maududi, Towards Understanding the Qur'¯an , VOL.IV 344, 345 (Zafar Ishaq Ansari Trans., Islamic Found. 1988).
[27] See Qur’an 62:10.
[28] The Qur’an stresses “Will Allah change the condition Of a people until they Change their own inner selves”. Id. 13:11. Caliph Umar emphasized that no one should refrain from seeking a livelihood and say, O Allah! Give me sustenance, for the sky will certainly not rain gold and silver. For more on opinions of jurists see M.Umer Chapra, Islam and the Economic Challenge 232 (Islamic Found. 1992).
[29] Id. 292.
[30] Government may need to deliver public services because of free-rider problems, otherwise these services would not be produced.
[31] For discussion on the role of the government see Muhammad Akram Khan, Public Finance in Islam, 40.2 Islamic Stud. 227, 231, 251 (2001) (public expenditure in Islamic economy will follow hierarchy of needs giving priority to essentials, followed by complementaries, and desirables. The government should refrain from performing all the functions that the private sector can perform. On the whole, shari’a is tilted toward free trade).
- Quote paper
- Professor Bashar H. Malkawi (Author), 2017, Jordan and the World Trading System, Munich, GRIN Verlag, https://www.grin.com/document/451224
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