“If al-Ġazālī is a Prophet, the Waǧīz is His Miracle”: Abū Ḥāmid al-Ġazālī’s Codification of Šāfiʿī Law

Legal codes have served multiple purposes. From early on, they have served as symbols of power, drawing their legitimacy from ancient roots. When observed historically, the practical importance of the codes has often been meager. Although the symbolic significance of the codes has never disappeared, from the nineteenth century onward their importance for practical legal life has been undisputable. The traditional view of looking at the codification history through the lens of nineteenth-century history of continental law is, however, in many ways misleading and in need of revision. Codes need to be considered in the context of other forms of normativity, such as normative ethics, as cultural products, and as export products.

enforcement of criminal law and criminal procedure (as set forth in the Tang Code) in the Tang dynasty.This article argues that the Tang Code seems to have been applied inconsistently in criminal law cases and that there appears to have been discrepancies between what the Tang Code required and how criminal law was actually implemented and enforced in Tang society.Officials tasked with deciding criminal law cases today still appear to have had substantial discretion in implementing the Tang Code.These inconsistencies and discrepancies are perhaps a testament to the diversity of approaches for governance and regulation in the Tang dynasty, which is not surprising given the geographic size and diversity of the Tang empire.Finally, given the current Chinese leadership's proclivity for citing what it considers politico-legal models in the Chinese past, it is an especially important time to enhance and better our understanding of traditional Chinese law.Overall, this article is ultimately based on the premise that we can only arrive at a full understanding of traditional Chinese law by looking at the application of historical statutes and legal provisions in practice and not simply focusing on the statutes and legal provisions in a vacuum.

Sejarah Hukum Islam Nusantara Abad XIV–XIX M , by Ayang Utriza Yakin

The Kanun Negeri Lingga (KNL) manuscript is an Old Malay Law (UML) text that proves the existence of Islamic legislation in Sarawak. This text represents Malay customary law that aligns with Islamic law. KNL consists of 88 pages detailing Islamic Law (Sharia); Laws of Royal Governance (Hukum Kanun Datu); Lingga Malay Customary Law; Criminal Law; Maritime Law (Ports, ships, navigation, merchant boats); and Commercial Law (trading, business, pawning, buying and selling, and lending). This study aims to prove the existence of Islamic family law practices in Sarawak before James Brooke’s arrival in the state. The specific objectives of this study are to elaborate on the information and content related to the Kanun Negeri Lingga manuscript; and to examine the Islamic family laws contained within the Kanun Negeri Lingga manuscript. This research employs a qualitative descriptive research approach, utilizing library research methods and document analysis. The data analysis method used to examine and explain the interpretations found in KNL is micro in nature and involves five main stages: text preparation and understanding research problems; reading the entire KNL; data coding; data classification based on themes; and data interpretation or explaining the meaning of the obtained data. The study successfully elaborates on the information and content of the KNL manuscript, with a particular focus on aspects of Islamic family law. Detailed analysis has been conducted on various aspects of Islamic family law in KNL, covering marriage, engagement, guardianship, offer and acceptance (ijab and kabul), witnesses, the concept of khiyar, as well as specific provisions related to marriage laws between Muslims and non-Muslims, and between free individuals and slaves. This study concludes that the existence of KNL serves as evidence contributing significantly to the formation of Sarawak’s constitutional framework in general and Islamic legislation in Sarawak in particular.

The Islamic legal system differs from other legal traditions, such as civil law, based on codification or common law based on binding judicial precedents. In Islamic law, there is neither a history of codification of law, nor a reliance on binding legal precedents. The process of ijtihad (analogical deduction) in Islamic (Sharie‘a) law, however, is similar to case law model. In this regard, Muslim scholars interpretation of the Sharie‘a rules and divine (God)’s law were based on the Qur'anic provisions and the authentic Sunnah (Prophet Mohammad) traditions. The chief sources of Islamic criminal law are the Qur'an, Sunnah, ijma‘a (consensus), Qiyyas (individual reasoning) along with other supplementary sources.Where the principles of the Qur'an and Sunnah do not sufficiently resolve a legal issue, Muslim intellectuals use Fiqh (jurisprudence) which is the process of deducing and applying Sharie‘a values to reach a legal purpose and its methodologies and implementation are many, as numerous schools of jurisprudential (Sunni and Shie‘aa) thought (Hanafi, Maliki, Shafi‘i, and Hanbali) transpires.4 This article will deal with the main principles of the Islamic criminal justice system regarding corruption and bribery from a descriptive viewpoint and will conclude that there is no real difference between the Islamic system and the positive justice mechanisms.

The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states is dominated by two conflicting narratives. The dominant Western narrative views the Islamization of laws as the reincarnation of narrow and archaic laws embodied in discriminatory statutes. In contrast, the dominant narrative of political Islam deems it as the cure-all for a range of social, political and economic ills afflicting that particular Muslim state. This Paper presents a deeper insight into the Islamization of Pakistan's law. Pakistan has three decades of experience with incorporating shari'a law into its Common Law system, an experience which has been characterized by a constant struggle between the dominant Western and Islamist narratives. Pakistan's experience helps us deconstruct the narratives and discourses surrounding Islamization and understand that the project of incorporating Islamic laws in a modern Muslim society must be based upon indigenous demands and undertaken in accordance with the organically evolving norms of recognition, interpretation, modification and enforcement in that society. Furthermore, substantive law cannot be understood or enforced outside of a legal system, its legal culture(s) and professional discourse(s), and of the broader socio-political dialectics that give context and relevance to it. Therefore, we need to shift focus to the systemic problems deeply ingrained in Pakistan's legal system that allow law and legal processes to be used to prolong disputes and cause harassment. Islamic legality can, in fact, play a significant role in breaking down the resistance that vested interests may offer to such a restructuring of the legal system along more egalitarian lines.

Freedom of speech and personal freedom are the natural and constitutional rights of every citizen in a society. However, the interpretation of these rights is varied from society to society according to their respective socio-cultural, politico-constitutional principles, and religious teachings. Human beings are confronted with paradox of blasphemy and freedom of speech. The misinterpretation of blasphemy and right to freedom of expression of opinion has created great stir in the circles of scholars at different periods; and also resulted in the persecution of prominent scholars and other people. This paper highlights the status of freedom of speech, and its critical evaluation in Islamic Law so as to understand its concept of blasphemy, its teachings on freedom of speech, and on personal security.

This study comprehensively examines the position of female witnesses in Islamic law, focusing on the scholarly debates regarding the acceptance or rejection of female testimony, particularly in cases related to criminal law (hudud). Using a qualitative approach, this study analyzes the theoretical and legal foundations that underpin the role of female witnesses and evaluates their application in Indonesia's modern judicial system. The main sources of this research include classical texts of Islamic law, the views of scholars, and applicable positive legal regulations. This research is conducted as a library study, drawing from classical texts of Islamic law, scholarly views, and relevant positive legal regulations. The findings reveal differing interpretations regarding women's testimony, with some classical scholars placing less weight on it compared to men, while contemporary perspectives tend to be more inclusive, aligning with principles of justice and equality.The results show that, although challenges remain in implementation, the role of female witnesses is increasingly recognised and accepted in the Indonesian judiciary, especially in cases that require a female perspective. The main contribution of this research is to provide insights that strengthen the discussion on gender justice in Islamic law, while offering recommendations to optimise women's participation in the legal process. These recommendations include strengthening policies that ensure witness equality based on the principles of maqasid al-shariah (the objectives of sharia) and applying norms that are more contextualised to social realities in Indonesia. As such, this research contributes to the development of a more just and inclusive justice system, capable of addressing contemporary legal and social challenges.

Forgiveness as a technology of the state

Reviewed by: Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century by Ahmed Fekry Ibrahim Gulay Yilmaz Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century. By Ahmed Fekry Ibrahim. Cambridge: Cambridge University Press, 2018. x + 278 pp. Cloth $99.99. There are few works on child custody in Islamic law in the literature. Ibrahim's work fills an important gap in the field, as it is well researched with an impressive bibliography. The book is informative on the theoretical aspects of child custody, discussing the different approaches of the Hanafi, Shafi'i, Hanbali, and Maliki legal schools. At the same time, it examines specific cases tried in Ottoman-Egyptian Shari'a courts in premodern and modern times. Ibrahim's attempt to contextualize the concepts of child custody and guardianship enables the reader to trace the historical development of the debates around child custody in modern Egypt. This contextualization is evident in both the periodization of the book and the organization of its chapters. Ibrahim examines approximately 600 cases drawn from eleven courts in Ottoman Egypt from the period 1517-1801. He views the Ottoman Hanafization policy after the French reconquest of Egypt as the first rupture in the application of Shari'a law on child custody cases (1801-1955) and examines hundreds of published Shari'a court records on child custody trials, especially between 1929 and 1954. Finally, the integration of Shari'a courts to the national court system and the incorporation of Islamic family law into a unified judiciary in 1955 marks a second turning point, which the author traces up to 2014. This long-term perspective highlights the complexity of child custody law in Egypt and its legacy in legal equitability in contemporary Egypt. There are six chapters in the book. Chapter 1 discusses the different juristic discourses on child custody. Chapter 2 outlines the approaches of various Islamic schools toward child custody and guardianship rules. These rules are analyzed under categories such as age and gender (the general attitude was to give custody to the mother during infancy and then transfer it to the father or relatives from the male line), remarriage of the mother or marriage of female relatives (the same restrictions did not apply to the father), lifestyle, religion of the parents, visitation rights and joint custody, relocation with the ward (again, only restrictive against the mother), and child maintenance. How jurists incorporated these categories in their custody deliberations in early modern [End Page 159] Ottoman courts in Egypt is examined in chapters 3 and 4. Finally, chapters 5 and 6 focus on the changing interpretations of child custody between the periods 1801–1929 and 1929–2014, respectively. One of the main arguments of the book is that despite the patriarchal nature of the Islamic juristic discourse and a very narrow sense of child welfare that was often associated only with gross abuse, there was flexibility in the application of law in Shari'a courts, attributable to pragmatism and the freedom of judges to adhere to different schools of law during the early modern era. Ibrahim examines private agreement deeds (khul) and argues that some jurists (mostly following the Maliki school of law) accepted them, allowing women to retain custody of their children in case of remarriage or travel with the ward away from their regular residence. This went against the dominant status, which did not consider these agreements binding. The author concludes that during the nineteenth century, the Hanafization of legal codes caused Islamic law to become less flexible. Child welfare ultimately became defined by the dogmatic rules of Hanafi jurists, leaving no room for private deeds or individual judges' interpretations. Ibrahim, however, explains that these private separation deeds (which actually constituted a minority in his sample) had ceased entirely by the 1670s. Therefore, the observed rigidity was not solely related with the Hanafization/codification of Islamic law. Ibrahim also argues that the process of Hanafization of Islamic law in the nineteenth century was highly influenced by European values and the "cult of motherhood," which resulted in a new family ideology. He posits that under this women's rights approach, it was unnecessary...

The events of September 11, 2001 and the subsequent declaration of an open-ended war on terror have given a new urgency to long-standing discussions of the relationship of Islam to liberalism. In order to avoid the polemics that characterize much of the writing in the Islam/Liberalism genre, this Article proposes to use the framework set forth in John Rawls' Political Liberalism to examine the grounds on which Muslim citizens of a liberal state could participate in a Rawlsian overlapping consensus. An overlapping consensus according to Rawls arises among citizens in a politically liberal state when they - despite holding incompatible theories of the good - each endorse the constitutional essentials of a politically liberal state for reasons within their own comprehensive religious or philosophical doctrines. This Article argues that the basis on which orthodox Muslims can participate in such an overlapping consensus can be found in Islamic theology and ethics. Because theology and ethics comprise the fundamental commitments of orthodox Islam, the political commitments set forth in Islamic substantive law which are inconsistent with constitutional essentials must be interpreted in light of those commitments. After describing orthodox Islam's theological and ethical commitments to rational theological and moral inquiry, the Article argues that such commitments implicitly require political institutions that allow free theological and ethical inquiry. The Article illustrates this aspect of Islam by describing the development of a system of intra-Muslim normative pluralism in which the existence of conflicting ethical judgments was accepted as a legitimate and inevitable product of moral reasoning. The existence of normative pluralism in the realm of ethics, in turn, made the project of a legal system derived entirely from revelation an epistemological impossibility. The result was that Islamic substantive law was forced to adopt non-theological modes of justification. The Article argues that, in the course of so doing, Muslim jurists made appeals to what Rawls would deem to be public reason. The Article concludes with a series of examples from Islamic substantive law that illustrate the ways in which the pre-modern Islamic legal system represents a qualified form of public reason, consistent with the public culture of a liberal democracy.

The events of September 11, 2001 and the subsequent declaration of an open-ended “war on terror” have given a new urgency to long-standing discussions of the relationship of Islam to liberalism. In order to avoid the polemics that characterize much of the writing in the “Islam/Liberalism” genre, this Article proposes to use the framework set forth in John Rawls’ Political Liberalism to examine the grounds on which Muslim citizens of a liberal state could participate in a Rawlsian overlapping consensus. An overlapping consensus according to Rawls arises among citizens in a politically liberal state when they - despite holding incompatible theories of the good - each endorse the constitutional essentials of a politically liberal state for reasons within their own comprehensive religious or philosophical doctrines. This Article argues that the basis on which orthodox Muslims can participate in such an overlapping consensus can be found in Islamic theology and ethics. Because theology and ethics comprise the fundamental commitments of orthodox Islam, the political commitments set forth in Islamic substantive law which are inconsistent with constitutional essentials must be interpreted in light of those commitments. After describing orthodox Islam’s theological and ethical commitments to rational theological and moral inquiry, the Article argues that such commitments implicitly require political institutions that allow free theological and ethical inquiry. The Article illustrates this aspect of Islam by describing the development of a system of intra-Muslim normative pluralism in which the existence of conflicting ethical judgments was accepted as a legitimate and inevitable product of moral reasoning. The existence of normative pluralism in the realm of ethics, in turn, made the project of a legal system derived entirely from revelation an epistemological impossibility. The result was that Islamic substantive law was forced to adopt non-theological modes of justification. The Article argues that, in the course of so doing, Muslim jurists made appeals to what Rawls would deem to be public reason. The Article concludes with a series of examples from Islamic substantive law that illustrate the ways in which the pre-modern Islamic legal system represents a qualified form of public reason, consistent with the public culture of a liberal democracy.

The status of Muslim women in the contemporary society has generated a lot of controversies and still generates serious debates and discussions in scholarly circle. Most scholars are of the views that Muslim women were subjugated, oppressed, and confined to domestic life that excludes their participation outside the home. In the wake of controversial implementation of Sharia (Islamic law) in the governance of some states, the Federation of Muslim Women Association of Nigeria (FOMWAN) served as an agency through which Muslim women speak as well as demonstrate that the implementation of Sharia is the greatest weapon against male domination. This paper examined the role of the FOMWAN in challenging the patriarchal ideology that is deeply rooted in the society. The paper argued that the activism of the organization was instrumental in the enlightenment and education of women especially on their rights. As such Muslim women of many different levels of educational attainment have become increasingly active in the organized articulation and pursuit of their interests and their rights under Islamic law.Keywords: Islam, Women, Right, Sharia, FOMWAN

Al-Qur'an, Hadith, Ijma, and Qiyas are the four main texts of Islamic law accepted by the scholars. On the other hand, Islamic law that is often cited by religious figures other than those listed above is istihsan, maslahah mursalah, istishab, "uruf, madzhab as-Shahabi, and syar'u man qablana. The existence and blasphemy of qiyas as a first step in establishing law still raises several problems and heated debates in the short term. Not all of the Qur'an, Sunnah, or Ijma' acknowledge the status of qiys as a valid legal proposition. The author tries his best in this case to describe a little about the views of the Syafi'iyyah jumhur ulama' towards the position of qiyas as one of the methods of establishing law in Islam. Therefore, without exception, those who use common sense in Islamic law will also be able to grow the spirit of Islam itself. Apart from using the available databases of books and nomenclature of Islamic law, this method of library research also using descriptive analysis.Based on the analysis, it was found that the level of relevance of qiyas as a method has been h has increased significantly since this writing was written, especially considering the region and spread of Islam which is basically cross-country, cross-national and cross-cultural. Qiyas remains a necessity for Muslims, which shows that not everyone is capable of doing istinbaht or drawing conclusions about Islamic law.

This study discusses the problem of corruption that occurs in society. This study uses a textual approach and context in Islamic law. The results of the study show that: First, the nature of corruption is an act which all leads to evil, unrighteousness, fraud, injustice which consequently will damage and result in the destruction of the order of life of the family, society, nation and state; Secondly, the Qur'an and hadith mention corruption with several terms, such as: embezzlement, bribery, robbery, theft, and seizure; Third, sanctions for corruptors in the text and context of Islamic law are the death penalty, the law of cutting off hands, being crucified, crossing arms and legs crossing, being exiled and imprisoned.