이슬람보험의 계약적 형태와 샤리아 아비트리지

Contractual Forms and Shariah Arbitrage in Islamic Insurance: Focusing on the Islamic Concepts of Gift and Sharing

Islamic insurance or Takaful has been developed as an alternative to conventional commercial insurance since the 1980s. As Islamic jurists(ulama) have resolved that conventional insurance should not be permitted because of excessive gharar(uncertainty) inherent in the sale of risk characteristic of insurantial contract between the insurer and the insured, they have attempted to formulate a shariah-compliant insurance based on the principles of gift(tabarru or hibah) and cooperation(taawun), which makes Islamic insurance similar to mutual insurance or cooperative insurance in its contractual form. This paper analyzes the legalistic logic adopted by Islamic jurists in order to apply the Islamic concepts of gift and sharing to insurance. In evaluating this process, I will base my analysis on the notion of shariah arbitrage, which means to negotiate and arbiter differences and gaps between shariah regulations and the lived realities. I am particularly interested in the phenomena that shariah arbitrage which seems to be successful creates a new difficulty and contradiction, and needs further shariah arbitrages, while the opinions of Islamic jurists have divided on what is proper shariah arbitrage for authentic Islamic insurance. This phenomena is clearly evident in the shariah arbitrages employing diverse notions of Islamic gift, such as gift promise(iltizam tabarru), gift with rewards(hibah thawab), and conditional gift(hibah muallaqa) to legitimize the tabarru model of Takaful. Conscious of logical contradictions difficult to be solved in the tabarru model, there has been a recent trend among Islamic jurists to establish Takaful on the principle of cooperation(taawun) or sharing(nihd) rather than on the principle of gift. This formulation makes Takaful closer to mutual insurance or cooperative insurance, and involves less shariah controversies. However, it occurs that the principle of taawun mainly remains in terms of the form of contract, but hardly reflects in the operational governance of takaful where takaful participants have little say in the management of takaful operators who are corporate companies much like conventional insurance companies. This shows another gap between shariah arbitrage and structural reality prevalent in the dual insurantial system adopted by most Muslim countries where Takaful has been introduced.