L'ASSICURAZIONE ISLAMICA (CD. TAKAFUL): LEGAL TRANSPLANT E MODELLI A CONFRONTO

For a long time, the notion of insurance has been considered incompatible with the principles and rules of the Muslim community. In Islam, in fact, every aspect of life is governed by Allah’s teaching which abhor uncertainty and risk in stark contrast with the legal and economic characteristics of traditional insurance. In addition to the risk of occurrence of the event for which insurance is sought, other aspects conflict with the principles of Islamic law such as the difference between premiums paid to and the payouts by the insurance company, the use of premiums in fruit-bearing instruments, delays in payment of premiums with interests and penalties, uncertainty as to the object and duration of the contracts and so forth. That being said, in Islam and other communities bound by different religious beliefs, the need for protection and stability is strong and demands an effective answer by the legal framework. The takaful has been such answer by Islamic law experts to traditional insurance to respond to the need for protections which is a primary need for all human beings, even if obliged to follow the precepts of Islam. It is a fully shari’ah-compliant alternative to provide coverage against risk and is based on solidarity, mutuality and the prohibition of riba (interest), gharar (uncertainty) and maysir (speculation). The takaful model was first developed in 1985 and has ever since established itself within the Muslim community. It is recently new and, therefore, the questions which we must answer are: is there a possibility to transplant the model in a non-religious system of law? Is the takaful architecture compatible with the structure of traditional insurance. What are the solutions to offer shari’ah-compliant instruments to respond to the need of protection in specific territories and which have been neglected by traditional insurance operators? Undoubtedly there is a measure of convergence between traditional insurance and takaful such as the function (i.e. to insure against risk), payment of a premium or a sum of money and the payout in case an event occurs. However, the structure is quite different as takaful requires the creation of two funds and a management role which differs from traditional insurance. In addition, a shari’ah board is often included within the takaful model which does not exist in traditional insurance. It is from this starting point, made of similarities and differences, that the following dissertation moves in order to answer the questions above.