The harm of death and the transferability of the right to compensation: A comparative study

The development of waqf assets in the form of adding the function of waqf is a new phenomenon in the problems of Islamic law jurisprudence even in positive law in Indonesia. In national law (positive), Indonesia has regulated this issue with the existence of laws and government regulations regarding waqf both movable and immovable waqf assets, even in its development every property in waqf must have an Deed and / or certificate. Whereas in Islamic jurisprudence, the development of waqf assets in the form of additional functions is one of the problems that can be said to be new, it needs legal conclusions and even has to be seen from various theoretical concepts such as maqashidu sharia. Therefore this research will examine the issue of developing waqf assets based on the Waqf Law and maqashid syari'ah. This research is an empirical legal research using a sociological legal approach, with data collection through documentation and interviews. The results of the research show that the development of waqf assets is permitted according to the law, but with the stipulated conditions, besides that the development of waqf assets is also permissible in Islamic jurisprudence as long as it is solely for reasons in accordance with the concept of maqasidu syari'ah and the point is to seek maslahat.

The subject of the research in this article is the consideration of the causes of the legal structure of compensation for moral harm, the study of the evolution of the mechanism of legal regulation of the compensation for moral harm in Russia in the Russian Empire, the Soviet Union, modern Russia. The study of the formation of the institution of compensation for moral damage is carried out on the basis of its correlation with the provisions of the Talion principle. The relevance of the research is due to the significance of the study of the peculiarities of the regulation of the civil law mechanism of the institute of moral damage compensation and the need to systematize views on understanding the development of the mechanism of legal regulation of the institute of moral damage compensation in different periods, under different political systems in Russia and, as a result, the division of all periods of legal regulation of the institute of moral damage compensation into several stages. It is also necessary to note the importance of conducting a comparative analysis of the mechanism of compensation for moral damage and the provisions of the talion principle throughout the entire time of their coexistence. The scientific novelty of the research is determined by the goal itself and the results of the work. In the course of the scientific research, the author systematized information about the development of the mechanism of legal regulation of the institute of compensation for moral harm, proposed his classification of the evolution of the mechanism of legal regulation of the institute of compensation for moral harm, consisting of several stages: pre-revolutionary, Soviet, modern, justified his conclusions; analyzed the ratio of the institute of compensation for moral harm and the Talion principle, their role and significance on the during each of the selected stages of the evolution of the legal regulation of the mechanism of compensation for moral damage. The correlation of the mechanism of compensation for moral damage and the talion principle within each study period is analyzed. The position of the institute of compensation for moral damage to the talion principle is determined.

This study compares Islamic jurisprudence and positive law to explore the obstacles of testimony, focusing on the complexity and controversy surrounding witnesses' interests. Employing a legal comparative method, the research examines self-interest in testimony, emphasizing authoritative sources like fiqh books and Jordanian law, shedding light on the concept of self-interest as its primary focus. It highlights the differences between Islamic jurisprudence and contemporary legal frameworks, providing a nuanced understanding of witness actions in legal processes. This research's findings reveal that testimony's self-interest predominantly relates to lineage, siblinghood, marital relationships, hostility, and partisanship. The results show both Islamic jurisprudence and positive law recognize the prohibition of testimony due to self-interests is not absolute; there are many interpretations and exceptions to this restriction, with differences stemming from the reliance on religious texts in Islamic jurisprudence and legal reasoning in positive law. This gap arises from the ability of contemporary law to examine the interests of witnesses from various perspectives and through the use of different evidentiary tools. This research contributes practically that the application of law that is different from what has been formulated by fiqh scholars in Islamic jurisprudence does not necessarily indicate that the legal decision is at odds with Islamic law.

Moral damage refers to harm inflicted upon non-material assets and is twofold: harm to emotions, which pertains exclusively to natural persons, and harm to reputation, which targets individuals’ credibility. In Islamic jurisprudence, there is no distinct discussion of harm and its classifications. However, jurists have made scattered references to moral damage within the context of the "no-harm" rule (la darar) in chapters concerning diyat (blood money) or other related principles. By relying on three jurisprudential rules—“no harm” (la darar), “no injury” (la jarah), and the rational conduct of reasonable people (bina al-uqala)—the permissibility of claiming moral damages in Islamic jurisprudence is established. Under Iranian statutory law, the possibility of moral harm is recognized, granting the aggrieved party the right to claim moral damages in addition to material damages. This right is primarily based on the Civil Liability Act of 1960 (Iranian calendar: 1339). Furthermore, the Code of Civil Procedure for Public and Revolutionary Courts of 1999 (Iranian calendar: 1378) explicitly acknowledges the right of the injured party to claim moral damages, even providing a definition of moral damage in a specific note. In American law, the basis for compensating moral damages is established through codified regulations and the legal framework governing civil liability for torts.

Islamic Criminal Jurisprudence on the Offence of Trafficking in Persons: An Interpretation of Fasad fil Arz and Hadd Offence

Civil liability is among the most significant legal issues that, with industrial developments and the emergence of modern communication and information technologies, has acquired a new face with novel foundations, conditions of realization, and methods of compensation. In the transportation of goods, depending on the type of commodity that is the subject of the transport contract, different obligations are imposed on the carrier. Generally, the carrier is obligated to perform the contract, i.e., to transport the goods of the contracting party from the sender to the recipient. Alongside this primary obligation, the carrier is required, in accordance with the terms of the contract and commercial custom, to safeguard the merchandise for the entire duration of the contract, to deliver the goods within the stipulated time, and to hand over the merchandise to the person designated in the contract. When the carrier fails to fulfill his obligation and breaches it, his secondary obligation, which is compensation for damages, comes into effect. To establish this secondary obligation, certain conditions must be met for the carrier to be held liable for the damages caused. In Islamic jurisprudence, Iranian law, and English law, although the conditions for the realization of civil liability include a harmful act, damage, and a causal relationship, each of these conditions, depending on the legal perspective and theoretical foundations of each system, has different dimensions. This study, written using a descriptive-analytical method, concludes that the three pillars—harmful conduct, damage and loss, and causal relationship—constitute the conditions for the realization of civil liability of the road carrier in Islamic jurisprudence, Iranian law, and English law. However, in each of these systems, such liability is based on its own particular rules: in Islamic jurisprudence, on principles such as itlaf (destruction), ghurur (inducement into error), and la darar (no harm); in Iranian law, on fault, risk, and related doctrines; and in English law, on fault, duty of care, and related principles. These foundations have led to differences in the conditions for liability, which directly affect the establishment of the carrier’s responsibility.

هدفت هذه الدراسة إلى تحقيق عدة أهداف محددة في مجال فهم الضمان في الفقه الإسلامي والقانون الوضعي،إذ هدفت إلى إثراء المعرفة حول مفهوم الضمان من الناحية الفقهية والقانونية وتوجيه الاهتمام نحو تحقيق التوازن بين الأصول الدينية والأنظمة الوضعية في مجال الضمان، وذلك تبعاً لأهمية الضمان في السياق الإسلامي، وبالتالي فمن أهم ما جاءت به وحرصت عليه الشريعة الإسلامية هو تنظيم أمور وأحوال العباد في كافة شؤون حياتهم وجميع مجالاتها ويأتي على رأس هذه الشئون أمور المعاملات المالية والمدنية ولذلك يعتبر موضوع الضمان في الفقه الإسلامي بشكل عام وفي المعاملات بشكل خاص من أهم الموضوعات في الفقه الإسلامي ولذلك فإن الضمان حكم ضروري في حياة الناس وهو حكم أساس من أجل أن يأمن الناس على أنفسهم وتتمثل إشكالية الدراسة في وجود غموض حول تحديد ماهية الضمان في التشريعات العربية حيث تختلط مع مفهوم المسؤولية المدنية مما يجعل من الصعوبة التعرف على حقيقة أحكام الضمان وما يمكن أن يساهم فيه في تطوير وضبط قواعد المسؤولية المدنية ولهذا تجيب الدراسة على السؤال الموجب فيها ماهي أحكام الضمان في الفقه الإسلامي وهي تهدف إلى التعرف على أحكام نظرية الضمان في الفقه الإسلامي وقد انتهت الدراسة إلى عدد من النتائج ومنها أن الضمان في الفقه الإسلامي يعتبر من الجوابر التي شرعت لجلب ما فات من المصالح و الغاية من الضمان جبر الضرر وإزالته. وهو ما نتج من العصمة التي لحق ومال الغير في الشرع الإسلامي ... وجبر ذلك يكون بالتعويض وهو مبلغ من النقود أو أية ترضية من جنس الضرر تعادل ما لحق المضرور من خسارة وما فاته من كسب كان نتيجة طبيعية للفعل الضار.

This paper addresses the topic of ‘renewal’ within Islamic jurisprudence. Currently, the discourse is broadly categorized into two main methods: the first method relies on the original internal mechanisms (contained within the science of Uṣūl al-Fiqh) to renew Islamic jurisprudence. The second method adopts the tenets of modernity and applies principles of historicity to contextualize the divine rules and revealed texts to a particular time and place. Consequently, solutions contained within revelation are confined to a specific historical context and are not intended to be universal. Within this second method, revelation is not deemed to be a valid source to solve contemporary issues unless they are subordinate to modernist interpretations. The first method is posed with the following challenge: is the Islamic jurisprudence that addressed problems in the past capable of providing solutions to new problems without needing to make any changes? This paper utilizes a comparative and analytical approach to compare the following two claims: the claim that the original method of Islamic jurisprudence is capable of renewal and the claim that Islamic jurisprudence is contingent upon modernity for reform. We conclude that the renewal is not dependent on displacing Islamic jurisprudence by subjecting it to modernist reinterpretations. Additionally, the doors for renewing Islamic jurisprudence cannot be opened free of parameters. The second claim rests upon the assumption that the renewal represents progress whereas tradition represents backwardness or decadence. The right approach must not trivialize solutions simply on the merit of them being old. Rather, the true renewal is to tackle any novel situation and provide its solution that is in accordance with the divine revelation and cognizant of the reality at hand. Applying rules to relevant scenarios which lack an explicit text relating to them must involve the use of sound ijtihād (i.e. following steps and requirements of ijtihād).

Studying the complex systems within Islamic law reveals a profound commitment to societal organization and advancement, rooted in a religion that values order and progress. Early Islamic society embraced various mechanisms ‒from postal services to policing and traffic regulations‒ illustrating an early form of a traffic security system. This legislative framework predates many modern legal systems, reflecting an integration of universal, humane, and civilizational principles. Islamic jurisprudence, with its pragmatic understanding of traffic dynamics and individual responsibility for physical well-being and material assets, extends its scope to include guarantees and compensation for bodily harm or financial loss arising from traffic incidents. Central to this exploration is an examination of the defining elements of traffic security in Islamic jurisprudence. What defines the traffic security system in Islamic jurisprudence? Does it comprehensively cover all aspects of traffic? Can it be unequivocally asserted that Islamic law takes precedence in shaping this system? This research examines these questions by assessing the system’s historical development and the meticulous precision of its legal edicts, fully realized by the third century AH. It investigates pedestrian conduct and broader regulatory complications, drawing upon insights dispersed across classical texts. Integrating historical, inductive, descriptive, and analytical methodologies, the study offers a holistic understanding of Islamic traffic law, providing timeless insights pertinent to contemporary legal discourse. However, a key limitation of this study is its exclusive focus on Islamic law, without addressing or comparing the legal frameworks of other religious traditions.

This article analyzes the scientific works and conclusions of the members of the Scientific Advisory Council of the Supreme Court, devoted to the topical and quite important and debatable issues of compensation for moral damage and the formation of the amount of compensation. The norms of the Civil Code of Ukraine, which regulate moral damage and its compensation, the norms of the Constitution, the judicial practice of consideration of civil cases on the compensation of moral damage to the citizens of Ukraine caused by the armed aggression of the Russian Federation, as well as criminal cases, were analyzed.It was concluded that a particular difficulty in providing evidence in cases of compensation for moral (non-property) damage arises when criminal cases are considered in court, where illegal actions are performed by three or four persons. The complexity of such cases lies in the fact that it is very difficult to establish which individual's actions caused negative consequences for the victim, and the amount of compensation depends on this.In this regard, the author's analysis of court practice is quite important, in particular, the verdict of the Trostyanets District Court of Sumy Oblast dated May 9, 2023, according to which a civil claim for compensation for property damage caused by a criminal offense committed by the invaders during the period of moral damage, in particular the materials of the criminal case, where the actions and events of the committed crime were recorded, gave grounds to conclude that there are three types of evidence in cases regarding the compensation of moral damage: a) direct evidence; b) indirect evidence; c) decisive evidence. Special emphasis is placed on the assistance of the prosecutor's office in protecting the rights of Ukrainian citizens by presenting group lawsuits to the court, the mechanisms of forming such claims, collecting and recording them are revealedcircumstances and evidence needed by the courts when considering this category of cases. Particular attention is paid to the grounds of the lawsuit, in particular, generally known circumstances that do not require proof are identified. But the authors argue that the court should approach the definition of such grounds individually, taking into account the age of the persons who suffered moral damage and the consequences that have come to them. Key words: moral damage, war, compensation for damage, lawsuit, court, amount of moral damage, evidence, expert, arguments, court decisions.

The paper examines the types of harm provided for by domestic legislation, their procedural features in a criminal case by filing a civil claim. The author argues that there is a need to amend the existing normative legal acts regulating the issues of compensation for harm caused by a crime, in particular, presents some arguments about the disclosure and legislative consolidation of the concept of “harm” in the framework of criminal proceedings. The author analyzes the gaps associated with compensation for property damage, in terms of the difficult simultaneous compensation for property and moral damage, as well as the lack of opportunity in the criminal procedure to recover lost profits. Some features of compensation for moral damage in relation to individuals and legal entities are investigated, for example, the issue of applying the rules for compensation for moral damage when a civil claim is filed by a legal entity. The process of proving the damage caused and the gaps in the issues of awarding compensation amounts in civil claims for compensation for damage, taking into account judicial practice, are considered. The author expresses her opinion on the matter of interim measures application in relation to the property of tortfeasor and imposing on the judge the obligation to render a decision in case of such a need, and not the right. Some differences between a civil claim for damages in criminal proceedings and civil proceedings are given, for example, the possibility of indexing the amounts subject to compensation has been analyzed. The analysis of some regulatory acts and the study of the procedure for compensation for harm caused by a crime in the UK. The author presents an argument about the development of scientifically grounded methodological recommendations that would fully reveal the existing gaps and problems in compensation for various kinds of harm caused by a crime.

The article discusses current problems related to compensation for damage caused to a citizen as a result of illegal criminal prosecution. This issue takes on particular significance in the context of reforming the law enforcement and judicial systems of Ukraine, since the violation of citizens' rights during criminal prosecution contradicts the principles of the rule of law and justice. The authors examine the provisions of national civil legislation, which establish the grounds and mechanisms of compensation for material and moral damage caused by illegal actions of law enforcement agencies or judicial institutions. Special attention is paid to the analysis of the current legal regulation of damage compensation at the expense of the state, as well as to the problems of the realization of such rights by victims. The article presents statistics on acquittals that show a discrepancy between the number of cases of wrongful prosecution and actual cases of damages. The main problems are highlighted, in particular, the lack of unified approaches to determining the amount of compensation for moral damage, the length of court proceedings, the difficulties of proving the amount of damage, and the limited practical application of legal norms. Particular attention is paid to the analysis of the practice of the European Court of Human Rights, in particular cases related to the violation of Article 5 of the European Convention on Human Rights, which guarantees the right to freedom and personal integrity. Key decisions that set international standards for compensation for damages caused by illegal criminal prosecution are considered. The authors offer a number of recommendations for improving mechanisms of compensation for damages in Ukraine. Among them are the introduction of clear criteria for assessing moral damage, simplification of procedures for obtaining compensation, expansion of state guarantees to ensure the actual execution of court decisions. Attention is also focused on the need to harmonize national legislation with international standards and increase the level of legal awareness of citizens. Key words: compensation for damage, illegal prosecution, moral damage, material damage, criminal proceedings, arrest, notification of suspicion.

This study aims to explore the historical development and contemporary challenges of Islamic legal institutions in the Philippines, with a particular focus on the intellectual contributions of Philippine Muslim scholars. It highlights the Luwaran of Maguindanao and the Diwan Tausūg as foundational legal frameworks that demonstrate the adaptability of Islamic law within the Philippine socio-cultural context. Central to understanding the Islamic legal system in the Philippines is the codification of Muslim Personal Laws, which marked a significant milestone in integrating Islamic jurisprudence into the national legal framework. However, the limitations of the Code, including its narrow scope and partial alignment with Islamic principles, underscore the complexities of implementing a comprehensive Islamic legal system in a non-Islamic state. Further, the article assesses the recognition of al-Sharī‘ah Courts and the legal provisions established under the Organic Act for the Autonomous Region in Muslim Mindanao, emphasizing the importance of cultural pluralism and legal inclusivity in addressing the aspirations of the Muslim minority. The study employs a historical-analytical approach which endeavours to review the primary sources and the codified Muslim Personal Laws, as well as secondary sources like scholarly works on Philippine Islamic history and jurisprudence. Critical analysis of the Muslim Personal Laws and the Organic Act for the Autonomous Region in Muslim Mindanao (ARMM), will help trace the evolution of Islamic legal frameworks and identify their socio-cultural relevance. The study recommends the significance of legal integration or a comparative legal approach as a crucial instrument for identifying areas of harmony and divergence between Islamic jurisprudence and national law.

Navigating the intersection of religious doctrines and legislative frameworks poses a significant challenge in the abortion discourse, particularly in Indonesia. This study investigates the legitimacy of abortion through the dual perspectives of Islamic jurisprudence and positive law within Indonesia’s intricate socio-cultural and religious milieu, where Islamic principles deeply influence legal interpretations and societal views. The study aims to dissect the complex legal and religious debates surrounding abortion in Indonesia, offering a thorough analysis of its legitimacy under both Islamic jurisprudence and state law. Current literature reveals a fragmented legal landscape marked by diverse interpretations and applications of Islamic principles and state laws, resulting in inconsistent legal outcomes. Adopting a qualitative methodology, this research utilizes doctrinal analysis of primary and secondary legal sources, statutory laws, judicial decisions, and Islamic legal texts. Findings highlight a stark dichotomy between strict prohibitions in traditional Islamic jurisprudence and more lenient, context-specific interpretations by contemporary scholars. The Indonesian legal system, heavily influenced by Islamic values, nonetheless displays flexibility in cases involving maternal health risks or severe fetal anomalies. Ultimately, this study advocates for a nuanced, context-sensitive legal framework that harmonizes Islamic jurisprudence with positive law. It proposes a balanced approach that respects religious values while addressing modern societal needs and medical realities, aiming to ensure legal clarity and safeguard women’s rights in Indonesia.

Purpose: This paper aims to shed light on the issue's prospects, as ethics in Islamic banking may become another distinguishing factor when compared to its conventional counterpart. This comparative research will compare co-operative banks that emphasize ethical operations to Islamic banking in Pakistan. Although ethics in other countries' co-operative banks has become a new market segment and succeeded because it drew many new customers who wanted to engage in a morally sound investment, Islamic banks continue to concentrate only on sharia. Design/Methodology/Approach: The qualitative method is used in this study by analyzing statutes, particularly Islamic jurisprudences, local and international protocols, conventions, and treaties Findings: In this work, it shows that ethics has the potential to make Islamic banking a full-fledged financial system if it is used as one of Islam's three pillars. Implications/Originality/Value: In the Islamic economy, Islamic banking is unquestionably at the forefront. Along with Faith (Aqidah) and Islamic Legal Jurisprudence (Sharia), Ethics (Akhlak), as in corporate social responsibility, is a core part of Islam that doesn't get as much attention as it should. An Islamic bank should primarily concentrate on sharia despite balancing those three pillars. In practice, a business with a high ethical standard must be profitable, legal, honest, and ethical while also considering long-term sustainability.