Date of Award

2014

Degree Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Graduate Group

Near Eastern Languages & Civilizations

First Advisor

Joseph E. Lowry

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.

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