74 research outputs found

    Legal maxims and Islamic financial transactions: A case study of mortgage contracts and the dilemma for Muslims in Britain

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    This article aims to focus on legal maxims related to financial transactions to explore whether they offer any solutions for Muslims concerned with this dilemma, and to investigate how such legal maxims can be used to shape the way in which Muslims in the West perceive today’s mortgage issues. Some questions raised are the following. When entering a mortgage contract, does a Muslim’s intention change the ruling of the transaction under the pretext of the two maxims al-ʿumūr bi maqāṣidihā (“matters considered according to intention”) and hal al-ʿibrah fī l-ʿuqūd bi l-maqāṣid wa l-maʿanī aw bi l-alfāẓ wa l-mabānī (“in contracts, is effect given to intention and the meaning or expression and form”)? Can one be certain that mortgages are completely ḥarām (unlawful) when considering the maxim al-yaqīn lā yazūl bi l-shakk (“certainty cannot be repelled by doubt”)? What aspects of ḥarām are found in mortgages and can they be marginalized by the maxim al-ḍarūrāt tubīh al-maḥẓūrāt (“necessity makes the unlawful thing lawful”)? If Islam allows bayʿ al-istiṣnāʿ (contract for manufacture) on the basis of ʿurf (custom), can mortgages also be permitted under the maxim al-ʿādah muḥakkamah (“custom is authoritative”)

    Law and discipleship: a Muslim reflection on Sharia in light of Bonhoeffer

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    Not always the vicegerent of God on the earth gets the spirit of God correctly when interpreting and implementing the Law of God. This stems from the fact that human beings are fallible. This fallibility must be taken into consideration when one speaks on behave of God. Islamic criminal law intrinsically consists both Right of God and Right of Humans. The former is built on clemency and benevolence when it is committed and before it is reported while the latter is engulfed with contention when it is violated. How could a legitimate Islamic government correctly do justice to God by implementing and interpreting His Law without violating the rights of Humans embedded in the Law calls for reconstructing classical interpretation and contextualizing modern implementation of Shariah

    Jurisprudential analysis of Maqasid al-Shariah in managing Mosques funds: a case study of Tabung Masjid (TM) in Malaysia.

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    Mosques funds in part of Muslim countries where Tabarruaat (voluntary donation) is in operation ought to have huge impact on Muslim youth empowerment and poverty alleviation. However, managing these funds in these Muslim countries to bring about the foreseen impact remains untapped. In Malaysia, the setup of Tabung Masjid (TM) has not been effective to serve the purpose of Islam. This is either partly due to unawareness of the Islamic jurisprudential perspectives on TM funds or partly due to the uninformed ways to manage these funds. This paper aims to assess way of which funds generated from TM in Malaysian is being managed. Access to the TM management will be sought to evaluate the effectiveness of the impact of these funds. The assessments of the way TM is managed at present will be analyzed on the jurisprudential perspective of Muslim classical and contemporary scholars. The central question of this paper will be how mosques funds can be effectively used for Muslim youth empowerment. The author will suggest, through the analysis of available data of mosques’ funds in Terengganu, Malaysia, productive methods of managing the TM which is more in tandem to the objectives of Islamic Law (Maqasid al-Shariah)

    Legal maxim “every loan that brings benefit is usury”: its related issues and implementation in financial transactions

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    A number of Islamic legal maxims are related to transactions (fiqh al-mu‘ᾱmalᾱt) and they could be implemented in Islamic finance and banking. One of these maxims is “Every loan that brings benefit is usury” (Kullu qarḍ Jarra Manf‘atan fahuwa Ribᾱ’). A normal ruling of the Sharῑ‘ah is that if anyone receives loan from a person or a bank, he is supposed to return its exact amount to the moneylender without any increase in it. Any increase, whether it is in the form of money, goods or any other assistance, is considered usury (ribᾱ’) and therefore it is forbidden. However, jurists have disputed over the issue: “If this increase is not mentioned at the time of giving the loan as its condition, and the borrower gives it at the time of paying the loan back to the moneylender or before it.” Some of them maintain that it is lawful, while some others consider it as forbidden. Using descriptive and analytical methods, this paper will discuss the above legal maxim, its proofs, disputes of jurists on its related issues and will try to give preference to the opinion which is stronger based on the strength of the proofs. Then it will strive to discuss implementation of this maxim on some pre-Islamic and contemporary financial transactions in Malaysia

    Harmonising legality with morality in Islamic banking and finance: a quest for Maqāṣid al-Sharī‘ah paradigm

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    Scholars in Islamic Finance Industry (IFI) have been calling for the integration of Islamic morality with legal theories in the industry. Among the reasons for this call is an unethical trend in product innovation. Implementing Islamic banking and financial practices would require adopting their undergirding Islamic legal and moral frameworks. Departing from these foundations of Islamic law could render the activities conducted under its name religiously unacceptable. Many approaches have been put forward to achieve this cause. One of the most complex yet subjective approaches is the quest for Maqāṣid al-Sharī‘ah. This paper critically examines the feasibility of harmonising morality with legality in Islamic finance. In doing so, it will reveal what constitutes morality and legality in Islamic legal theory, and critically examine the approaches of Muslim classical scholars in fusing the two elements together for the realisation and actualisation of the very objectives of Sharī‘ah. Questions of the relationship between morality and legality are raised, and samples of Islamic finance products are evaluated to expose their moral and legal dimensions. Lastly, the role of Maqāṣid al-Sharī‘ah in the process of harmonisation is discussed with some observations and reservations on the practicality of their implementation

    Al-Shāfi’ī’s position on analogical reasoning in Islamic criminal law: Jurists debates and human rights implications

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    Al-Sha¯fi’ı¯ (d. 204/820) has been unreservedly credited as one of the designers, if not the “master architect,” of uṣūl al-fiqh (Principles of Islamic jurisprudence). His most important scholarly work, Al-Risa¯lah (The Epistle), clearly demonstrates his cognitive creativity in this field. One of the methodologies for the decision of cases under Islamic law that Al-Sha¯fi’ı¯ championed is qiyās (analogical reasoning), which he equated with ijtihād (legal reasoning). His balanced approach invites further enquiry into the extensive use of qiyās in general and in criminal law in particular. The extent to which qiyās can be applied to Islamic criminal law depends upon the degree or typology of qiyās being used, taking into account the Islamic theory of criminology. This article will analyse the position of al-Sha¯fi’ı¯ in this regard. It will critically examine al-Sha¯fi’ı¯’s complex views on the use of qiyās as a method for establishing culpability under Islamic criminal law. It will then explore how his position corresponds to the human rights paradigm in the contemporary age. This article concludes that, while the use of qiyās in criminal law, especially in law of retaliation (qiṣāṣ) and predetermined punishments (ḥudūd) in accordance with al-Sha¯fi’ı¯’s approach is tantamount to incriminating a person based on less than certainty (yaqīn), it also represents the most promising way of protecting the right of victim

    Applications of legal maxims in Islamic criminal law with speciual reference to Shariah law in northern Nigeria (1999 - 2007)

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    The Subject of Islamic legal maxims is one of the sciences in Islamic jurisprudence which aphoristically subsumes all the spectrums that purpose of Sharl`ah is all about. There are six basic Islamic legal maxims agreed upon among the Islamic scholars on which the tenet of Islamic law is based. Each one of these six legal maxims has some sub-maxims which are either functioning as further explanation to the grand maxim or condition and restriction to it. This thesis attempts to analyze those six legal maxims and their sub-maxims in relation to Islamic criminal law. Each maxim is theoretically and empirically studied. In doing so, the thesis emphasizes on the link between each legal maxim and the overall objectives of Islamic law in relation to criminal law. The maxims are: (1) the roles of intention in a criminal act (a1-'umcir bi magasidiha), (2) evaluation of evidence from its certainty and doubt (al yagln lä yazül bi al-shakk), (3) facility guaranteed in the face of hardship (almashagqah tajlib al-taysir), (4) preference of Islamic law in eliminating harm (al-darar yuzäl), (5) the locus standi of custom (al-`adah muhakkamah) and (6) the effect of utterances ('i `mä1 al-kaläm awli min ihmiiih! ). Each one forms a chapter of the thesis and in addition, there is a first chapter which delves into the concepts of Islamic Legal Maxims (al-Qawi'id al-Fighiy)eah). In order to make the theory of these six legal maxims empirically visible, and to integrate the work of the past and the present, cases judged in Northern Nigeria Shari `ah courts are critically illustrated in line with the overall objectives of Islamic Law (Magiyid alSbari'ab). The constant questions raised in the thesis are: Do judges consider core principles of these legal maxims when delivering verdicts? Do the verdicts corroborate/ commensurate/ extrapolate the tenet of Islamic Law? Is attention paid to the cardinal difference between the rights of God and the rights of mankind in evaluating crime brought before the judge before giving judgments

    Aspects of Islamic law for halal products and services in a new era: spiritual, legal and moral dimensions

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    Aspects of Islamic Law for Halal Products and Services in a New Era: Spiritual, Legal and Moral Dimensions With the fast growing of Halal industry, and the expansion of the definition of Halal to include all areas of Muslims’ lifestyle, there is an urgent need to build this growth on a very solid and resilient Shariah framework in order to avoid chaos and downfall in the future. While there are so many research analyses on market, economic and statistical growth of Halal and the mundane benefits of this growth, we seldom find a rigorous Shariah analysis on what each element of Halal Industry component involves. Among the Muslim Classical Jurists, the term Halal was most often used for edible products as opposed to other evolved elements of halal in the new era. Halal products and services in the new era include halal food and its subs, halal banking and finance, halal cosmetics, halal advertisement, halal hospitality and tourism, halal logistic, to mention few. All these components from Islamic law point may have similar general principle of permissibility, but in practice, however, particular principles are accorded to each component. This core niche area has not been well researched, and it could tantamount to chaos in the future if care is not taken. My speech today explores aspects of Spirituality, Legality and Morality in Halal Product and Services in this time we are living. The paper elucidates the three dimensions from the sources of Islamic law. How do spirituality, legality and morality affect halal products and services in Islamic law? Why do we need to make our product and services halal from spiritual horizontal dimension? What are the consequences of nonchalance towards adherence to this need? What is the basis for halality and haramity of products and services offered in the markets? In a compelling situation, what are the tolerable haram products and services from Islamic legal theory, and who has the legitimate power to regulate the tolerable size of haram if there exists complication between halal and haram? The paper submits that while spiritual dimension of halal products and services serves to connect humans with his/her Creator, Allah, it also serves the purpose of healthy being, which is one of the components of Maqasid al-Shariah. The legal dimension of Islamic law on Halal products is entrusted to the authority for the regulation of human’s behaviour towards his Creator and his human fellows. The moral dimension is meant for purification of souls, and helps human beings to attain the highest status of Iman. By and large, a holistic society can be created through adherence to the three dimensions of Islamic law in halal products and services in the new era

    Textuality as a linguistic mechanism for codifying legal maxims in Islamic criminal law

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    Studying the works of medieval Qur'anic exegetes reveals that they explored approaches to interpreting the Qur'an based on the contextualization of Qur'anic principles and concepts. As this article will show, several of these approaches include the notions textuality, intertextuality, and hypertextuality. This article examines one such approach by focusing on the use of textuality as a linguistic mechanism to complement the juristic methodology of codifying legal maxims (qawa'id fiqhiyah) from Qur'anic exegesis. It explores a number of relevant Qur'anic exegeses and synthesizes how Muslim exegetes view the use of textuality with regard to the development of Islamic legal maxims. This article also notes that legal maxims codified by this approach are potentially subject to exception when applied to Islamic criminal law, although, as this article ultimately explains, the basic rule may be static. I also examine the claim that legal maxims codified directly from the sacred texts are unquestionable. This article concludes that the remit of legal maxims codified from textual revelations be done so directly or indirectly, however,, this does not preclude their actual application from scrutiny

    Codification of Islamic law in the Muslim world: political intricacy and professional egoism

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    In the last century, the claim that the idea of codification of Islamic law is foreign, innovative and meant to undermine the divinity of the Islamic law is spurred by some Muslim jurists among are the members of the Saudi Arabia Council of Senior Scholars (ayhatkibar al-Ulama Al-su’udiyyah).But historically, literatures of Islamic legal theory reveal that the idea of codification of law as deemed in the West is very close to the idea of codification of Islamic legal maxims (taqnin al-qawaid al-fiqhiyyah) which unofficially emerged in Islamic jurisprudence as earlier as 1st century of Islamic law.This paper aims to explore the historical concept of the codification of Islamic law with focus on political desideratum surrounding the call for and against the concept of codification of Islamic law in Saudi Arabia with reference to other Muslim countries. I suggest the concepts of maslahah (public interest) and talfiq al-madhaahib(hybridization of schools of jurisprudence) as justificationsfor the realization of the benefit of the concept. In order to preserve the sacred nature of Shariah while codifying its laws, the concepts of textuality and intertextuality as working mechanisms are also proposed. The paper concludes that the codification of Islamic law through these mechanisms can remove ambiguities and fears being expressed about the possibility of codification of Shariah law and at the same time ensure justice in application of Islamic law our contemporary world
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