Classical Islamic Jurisprudence Research Articles

Istinbath Methodology of DSN-MUI: Integrating Classical Islamic Jurisprudence with Contemporary Needs

The objective of this paper is to examine the methodology employed by the National Sharia Board of the Indonesian Council of Ulama (DSN-MUI) in deriving legal rulings (istinbath) within the dynamic framework of the intersection between classical Islamic jurisprudence and contemporary societal needs. The study seeks to provide a detailed analysis of the approach adopted by the DSN-MUI, with a particular emphasis on its predominant utilization of the Intiqa’i or Takhyiri framework. This approach underscores the significance of considering maslaha (public interest) and makharij (solutions) over tarjih (preferential selection based on the strongest evidence). Employing a qualitative research methodology, the paper conducts a thorough content analysis of the fatwas issued by the DSN-MUI and relevant scholarly literature to delve into their istinbath process. The research findings suggest that the DSN-MUI occasionally resorts to collective ijtihad (ijtihad jama’i) in exceptional circumstances, diverging from the prevailing consensus on issues such as non-cash gold transactions and the conversion of tabarru’ contracts into mu`awadhat contracts. By shedding light on the application of the principles of tafriq al-halal wa-al-haram (differentiation between what is permissible and impermissible) and al-’ibrah fi al-’uqud bi al-alfazh wa al-mabani (legal reasoning in accordance with the teachings of Imam Shafii), this study significantly contributes to the field of Islamic jurisprudence. Moreover, this research offers a comprehensive analysis of the istinbath methodology of the DSN-MUI, providing valuable insights into how classical Islamic jurisprudence is adapted to address contemporary economic and social challenges in the Indonesian context.

EXPLORING THE ETHICAL DIMENSIONS OF FIQH: THE ROLE OF THE SOUL IN ACHIEVING MAQASID AL-SHARI'AH

This study delves into the ethical intricacies within Islamic jurisprudence (fiqh), with a particular focus on the integral role of the soul in realising the higher objectives of Islamic law, known as maqasid al-shariah. Drawing from classical Islamic jurisprudence and ethical philosophy, the research explores how fiqh goes beyond legal compliance to emphasise the cultivation of moral excellence, with the soul (nafs) serving as a fundamental element in this ethical pursuit. Through alignment with divine purpose, individuals contribute to justice, compassion, and societal well-being. The study offers a concise exploration of fiqh's ethical dimensions, highlighting the profound significance of the soul in the pursuit of maqasid al-shariah, which encompass the preservation of religion, life, intellect, progeny, and property. By shedding light on the ethical dimensions of fiqh and the centrality of the soul in Islamic ethical thought, this study aims to contribute to a deeper understanding of the moral foundations of Islamic law and jurisprudence, enriching contemporary discourses on ethics and jurisprudence within the Islamic tradition.

Suspension of the statute of limitations for civil claims: A comparative study of arab legislations

This study investigates the concept of suspension of statutory time limits for civil claims, where suspension is defined as a legitimate excuse that pauses the prescription period due to physical, moral, or legal impediments preventing a claimant from enforcing their rights. The research examines how the Ottoman Mecelle (still applicable in Palestine), and the Civil Codes of Jordan and Egypt, address this issue within their legal frameworks, which integrate Civil Law principles with classical Islamic jurisprudence. The findings reveal that while Arab legal systems generally adopt a broad view of suspension, recognizing a wide range of impediments, the French Civil Code applies a more restrictive approach. Additionally, the study highlights the role of judicial discretion in determining and applying suspension, noting variations across jurisdictions. It critically evaluates specific legal provisions, such as those related to travel and prolonged absence in the Mecelle, and suggests updates to these provisions to better reflect modern practices. The study recommends standardizing definitions of impediments, updating outdated legal provisions, and refining judicial discretion to ensure that suspensions are applied fairly, focusing on whether the impediment materially affected the claimant's ability to assert their rights. These insights aim to enhance the clarity and fairness of applying statutory time limits across different legal systems.

Revisiting the classical Islamic jurisprudence with the Advance in Modern Medicine and Technology (An applied study on "Inheritance by Estimation and Anticipation" in the Islamic law of Inheritance)

Through an analytical method, this paper emphasizes the role of modern medicine and the advance in technology in reshaping the “inheritance by estimation and anticipation” in the classical Islamic law of inheritance. Main areas of concentration include: determining the sex of the hermaphrodite, the sex of the fetus/fetuses and their numbers during pregnancy. In addition to these is determining the sequence of the death of individuals in a disaster involving the same heirs, such as those killed by drowning, ship wreck, fire, and the like. These are very important factors which greatly affect the decisions on inheritance of the heirs when any of the above circumstances occurs, only that these factors were all treated based on anticipations and estimations in the classical Islamic jurisprudence of inheritance, with difficulties in achieving accurate measures to unravel these circumstances. In order to achieve a more relevant and practical application of the classical Islamic jurisprudence of inheritance, this article works on updating the anticipations and assumptions mentioned earlier. Rulings which were based on presumptive interpretations were treated with a balance between the principles of Islamic law and the discoveries in modern medicine. However, the rulings which were based on definitive interpretations were not the area of concern.

Beneficial Ownership in Sharī‘ah and Modern law: A case of Sovereign and Quasi-Sovereign Ijārah Ṣukūk Structures in Pakistan, Bahrain, and Malaysia

The concept of beneficial ownership has been tremendously used in the sovereign and Quasi-sovereign ijārah ṣukūk structuring on a mega scale. This paper aims to examine the meaning of beneficial ownership and its recognition in the light of classical and modern Islamic jurisprudence. It overviews the laws related to beneficial ownership in the Pakistani, Bahraini, and Malaysian legal regimes, and further elaborates Sharīʿah appraisal of beneficial ownership focusing on its characteristics in Sharīʿah. The findings of this study present that the legal status of ownership as per Sharī‘ah is a need-based phenomenon and not a mandatory requirement. Hence, if the transaction fills the ahkam (commands) for milkiyah and tamlikat (ownership) then the transfer of ownership is a compulsory element for the sale consequences. Moreover, it also explains that the use of beneficial ownership in sovereign and quasi-sovereign ijārah ṣukūk structures is acceptable in principle because the valid sale transaction that occurs between the originator and SPV effectively transfers ownership to later, as it is described in ṣukūk prospectuses as ‘beneficial interest. Finally, it may also be justified in the context of hurriyat al-tasurruf (right to dispose-off the asset) and ‘qualified ownership’.
 Keywords 
 Beneficial ownership, legal title, ijārah ṣukūk, Sharī‘ah appraisal

People's Understanding of the Off-Court Talak (Case Study in Nagari Koto Tuo, IV Nagari District, the Sijunjung Regency)

This study describes the understanding of the people of Nagari Koto Tuo, IV Nagari District, The Sijunjung Regency about divorce (talak) outside the Religious Court. Ideally, with the enactment of Law No. I of 1974 on marriage, talak should be decided in the Religious Court. However, this ideal procedure does not apply effectively in Nagari Kuto Tuo. Although the local settlement is not distant to the local Religious Court and the access for transportation is easy, many husbands recklessly decide to divorce their wives at home during the dispute between them without registering their lawsuits to the court. The purpose of this study is to lower the off-court divorce rate and raise legal awareness of the public about the importance of following the prevailing regulation regarding divorce in Indonesia. This is important because divorces decided without statutory procedures have adverse impacts, especially for women and children. This study uses a qualitative approach, with the divorced wives being the subject of the study. The data collection techniques include observation, interviews and documentation. Data validity techniques follow the triangulation method, whereas data analysis is performed through the following steps: data collection, data reduction, data presentation and conclusion drawing. This study found that the understanding of the people in Nagari Koto Tou about divorce is shaped by classical Islamic jurisprudence (fiqh) that posits husband to have the absolute right to divorce. With this absolute right, husbands can decide to divorce their wives whenever and wherever they want without being bothered to consider registering it formally to the local Religious Court. The divorced wives are left in despair without any power to defend her right. This provision on divorce is considered indisputable let alone contested. As a consequence, this off-court divorce generally leaves women traumatized, making many of them unwilling to get another marriage. This trauma partly contributes to the number of off-court marriages, for they do not see its importance. Legal certainty obtained from the court's verdict of divorce as recorded by the divorce certificate is deemed unnecessary, for they would not remarry in the future

Исламская теория международных отношений в Индонезии: формирование национальной школы

Indonesian national school of Islamic theory of international relations (TIR) began to form in the second decade of the 21st century. Its main characteristics are the combination of the Divine revelation with rational analytics and empirical knowledge, as well as Indonesian national features that combine classical Islamic theology, jurisprudence and local traditions. Indonesian scholars focus mainly on the most debated issues in the Islamic TIR, i.e. on war and peace, the relationship be-tween Islamic and non-Islamic states, the division of the world into Islamic territory and the territo-ry of war, the interpretation of jihad, and the project of the global caliphate. Remaining within the framework of the Islamic paradigm, Indonesian theorists reject medieval traditions and approaches and single out the postulates of sacred texts that do not contradict rational thinking and make it pos-sible to adequately respond to the challenges of contemporary international relations. They do not contrast Islamic TIR with the postulates established in world academic science, but seek to supple-ment them with their interpretations of global problems according to their national religious and cultural traditions.

Analisis Yuridis Terhadap Rumusan Jarimah Pemerkosaan dalam Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat

This research aims to predict the extent of the punishment disparity probability in the Qanun Jinayat's rape formula as a consequence of the breadth of the formula and to determine the construction of the definition and classification method of the classical Islamic jurisprudence’s az-zina bil-ikrah formula and the Qanun Jinayat’s rape formula as a consequence of radical differences between the two coercive sexual delicts that are formed based on Islamic law. This research is normative legal research by using statute and comparative approach. The research results showed that the Qanun Jinayat’s rape formula has the punishment disparity probability in the same delict, the disparity in delicts those have same seriousness gradation, the disparity of punishment imposed by one judges panel, the disparity of punishment imposed by different judges panel for the same delict and the disparity of punishment in different actions in one delict formula with different gradations of seriousness. The definition and classification of az-zina bil-ikrah are constructed through the bayani method, while the definition and classification of the rape are constructed through the istishlahi method.

The Islamic Credit Card Based on Ujrah Concept:

Islam is a way of life that seeks to protect the human being from financial harm through prohibiting riba, maysir, and gharar. Islamic credit card is one of the alternative banking products offered by Islamic financial institutions to replace the conventional credit card. The Islamic credit card was initially based on the Inah concept. However, this concept was criticized by both contemporary and classical Islamic jurists, especially in the Hambali, Maliki, and Hanafi school of thought. Therefore, some Islamic banks of Malaysia offer a better alternative, developing the credit card on the concept of ujrah, which is less ambiguous among Islamic scholars. This study will explore the background of Islamic credit card base on the concept of ujrah. It will then further discuss the justification for the permissibility of the concept. Finally, this paper will highlight the issues related to the practice of ujrah in Islamic credit card operations. The findings indicate that the credit cards based on ujrah (fee) are permitted from the Sharia perspective as long as they do not involve any element of riba (interest). However, it involves Shariah issues on its practice of ibra (rebate) and penalty charge. To fulfil the objective of the study, it will refer to the Quran, Hadith, classical Islamic jurisprudence, juristic opinion of Islamic scholars, Shariah standards of international Islamic standard-setting bodies, and other policy documents of the Islamic banks.

The fiqh of disaster: The mitigation of Covid-19 in the perspective of Islamic education-neuroscience

Fikih Kebencanaan (Coping with Disaster) is a product of Muhammadiyah's ijtihad to respond to contemporary problems, especially geological and non-geological disasters, which later become the normative foundation for the mitigation of health disasters such as the Covid-19 pandemic. The paradigm of the present research is a transdisciplinary qualitative type with a phenomenological approach. The research analyzed the reasoning of Fikih Kebencanaan and its actualization in Covid-19 mitigation, the medical health movement and the reconstruction of fiqh of worship during an emergency in particular, and how to deal with the disaster theologically in general. The results showed that the reasoning of Fikih Kebencanaan was expanded in terms of medical, theological, and educational movements. Medical movement is a health movement in the form of providing 74 Covid-19 Standby Hospitals capable of accommodating 3917 patients or 36.15% of the total number of cases in Indonesia, followed by the distribution of masks, gloves, and foods to 401,209 Covid-19 affected victims. The theological movement was in the form of religious provision in which Muhammadiyah attempted to reconstruct classical Islamic jurisprudence of the rule of worship to adapt to an emergency. In contrast, the Indonesian Council of Ulema (MUI) applied zoning. The educative movement was a preventive effort to counter narration stemming from micro-celebrity Da'i (Islamic preacher) & Influencers (religious preachers) tried to circumvent religious provisions with their viral statements on social media. This effort was realized by developing neuroscience Islamic education with learning media in visualization that combined modern comics and contemporary cartoons with cinematic narratives. The neuroscience Islamic education movement tried not to use the dogmatic-monolithic approach as in classical education.

Review of Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition, ed. Ziba Mir-Hosseini, Kari Vogt, Lena Larsen, and Christian Moe

The conflict addressed by the book Gender and Equity in Muslim Family Law centres on how religious authority in Islam is understood. The authors charge that the classical position within Islam, with its adherence to the fiqh tradition as immutable, employs a patriarchal understanding of gender. This understanding of inequality is taken for granted by the authors of early Islamic jurisprudence and reflects the values of their day. The authors challenge the classical Islamic jurisprudence that said women were created for men, are defective in reason and faith, and are destined to live in a world where men are superior to women. The book analyses the political and hermeneutical obstacles to gender equality in Islam. It begins with an introduction by the four editors, Ziba Mir-Hosseini, Kari Vogt, Lena Larsen, and Christian Moe, who define the book’s purpose. They set out to provide a forum for diverse scholarly voices who address the problems for women in Islam that stem from the traditional understanding of the Arabic terms qiwāma and wilāya. These terms connote a form of guardianship that places men as heads over women as men are to serve as guardians and breadwinners in their respective homes. The guardian role, according to the traditional understanding, puts much power in men’s hands to supervise the decisions of women, especially when it comes to marriage. The authors of this book assume that classical jurists believed that women were incapable of making those decisions independently. In response, the authors of each chapter make their argument for various strategies of reform.

Qur’an and Interpretation in the Classical Modernism

This paper focuses on the muslim modernist exegesis. In the mid-nineteenth century Muslim modernist exegesis emerged under the influence of Western science in various parts of Muslim lands such as India and Egypt. Some main characteristics of this approach in the early Muslim modernism are as follows: A central focus on the Quran as the primary text; a sceptical approach to ḥadīth; emphasis on ijtihad (independent reasoning), emphasis on a new systematic theology (new kalām), a critical approach to classical Islamic jurisprudence (fiqh), and interpreting the Qur’an in the light of reason and modern sciences. The current literature describes Muhammad ʿAbduh (d. 1905) as a modernist salafī or intellectual modernism (by Fazlur Rahman). The paper holds the view that because the more emphasis is given to the Qur’an rather ḥadīth in ʿAbduh’s thought, ‘intellectual modernism’ seems the best description for ʿAbduh’s way. It also argues that what ʿAbduh attempts to do is tafsīrisation of other Islamic disciplines through his text-based approach.

STUDI ANALISIS PUTUSAN PENGADILAN AGAMA JAKARTA SELATAN NO. 1751/P/1989 TENTANG PERKAWINAN MELALUI TELEPON

The legal basis of marriage law in Indonesia Constitution No. 1 of 1974 concerning Marriage and Compilation of Islamic law which is a reduction of Islamic rules regarding marriage, divorce, representation and inheritance originating from classical Islamic jurisprudence literature from various schools which are summarized and adapted to the needs of the people of Indonesia. The two legal bases regarding the marriage are expected to be a legal basis for the Indonesian people who will carry out the marriage. But in the practice of implementing marriage in the community, many new things appear that are ijtihad because there are no rules specifically set out to regulate such matters such as marriage through telephone.

Al-Muwathanah Concept for non Muslims in Islamic majority Countries Siyasah Fikih Perspective

The Islamic priests do not use the word of minority (akalliyah) in the literature of classical Islamic jurisprudence when they talk about the existence of non-Muslims in Islamic countries, but they use the term of ahluzzimmah. Their reason not to use that term is because Islam itself does not distinguish the rights and obligations between Muslims or non-Muslims who live in a country, except those closely related to religious issues. This was caused by the actualization concept from one of religion rule "lahum maa lana wa alaihim ma alaina" which means: they have rights and obligations as Moeslems. Despite our scholars do not use the term of minority in their own intellectual tradition, the term has become popular especially in a concept of writing process that cause the using of these terms is valid.

The Difference of a Child (Walad) Concept in Islamic Inheritance Law and its Implications on The Decisions of the Religious Courts in Indonesia

This article is based on the fact that there is still the disparity of decisions among the Religious Court Judges on heirs, especially a child (walad), when handling the inheritance disputes. This is because there is a general provision of the meaning of walad contained in the Indonesian Compilation of Islamic Law (KHI) in which it includes both a son and a daughter. In addition, there is no obligation for Religious Court Judges to use the KHI as the basis for legal considerations, allowing for some Religious Court Judges to use the classical Islamic Jurisprudence (fiqh) as the legal basis in deciding a case. This article aims to investigate the impact of the general concept of walad (a child) and measures should be taken the Government to accommodate the legal reference material for Religious Court Judges, especially the KHI and the classical Islamic Jurisprudence (fiqh). It employs normative legal research which primarily examines the decisions of the Religious Courts in East Kalimantan, specifically Samarinda, Tenggarong and Tanah Grogot. The findings reveal that since there is no obligation for the Judges to use the KHI, referring to the classical Islamic Jurisprudence when giving legal considerations and deciding cases of inheritance is not against the procedural law in Indonesia. Yet, this measure potentially creates the disparity of decisions in the Religious Courts since the fiqh differs in determining who the walad is: merely sons or include both sons and daughters. This has frustrated the objective of the KHI as the codification of Islamic Law in Indonesia which unites the differences of opinions in the fiqh and, thus, assures legal certainty in resolving the disputes. Hence, the government should enact the KHI as a Law in Indonesia in order to end the forum of choice for the Judges in basing their decisions so that the disparity of decisions in the Religious Court minimized and legal certainty assured for the justice seekers.Keywords: Islamic inheritance law, walad, fiqh, religious court's decision.

Islam Nusantara – Against Radicalism and Extremism

Recently, the concept of Islam Nusantara appeared in the Islamic social thought of Indonesia. This term was officially put into circulation by the religious and educational organization Nahdatul Ulama (Revival of the Ulema) in 2015. Islam Nusantara respects cultural and religious differences as manifestations of the will of Allah, believes that love and compassion are integral features of the Muslim religion. Islam Nusantara organically does not accept the authoritarian and pretending to be the truth in the last instance interpretations of Islam, imposed by extremists. Islam Nusantara is the reinterpretation of the basic theological principles of the NU, which combines classical Islamic theology (aqeedah), jurisprudence (fiqh) and local traditions. This approach suggests that Indonesian Muslims do not need to give up their national and local identity. On the contrary, traditional values can coexist harmoniously with Islamic identity, and an orthodox Muslim can simultaneously be an Indonesian nationalist. Supporters of the concept emphasize that this is not some new trend in Islamic social thought or another interpretation of Islam. Islam Nusantara is an Indonesian version of Muslim religious practice, historically developed in the process of its dissemination on the archipelago. Islam Nusantara provokes sharp rejection and condemnation of representatives of radical Muslim movements, especially Wahhabism and Salafism and their like, who seek to purify Islam from local traditions.

Sale with the temporary exclusion of usufruct

Purpose This paper aims to investigate sale with the temporary exclusion of usufruct, a format debated in classical Islamic jurisprudence. More specifically, it examines the application of this sale format in the diminishing partnership arrangement used by American Finance House LARIBA to finance house purchases. It analyzes the Sharīʿah issues and assesses the risks involved. Design/methodology/approach The research is qualitative, surveying and critically analyzing classical fiqh literature and contemporary juristic resolutions, as well as LARIBA’s financing documents. Finally, it systematically surveys the associated risk factors, first qualitatively, and then by quantifying them. Findings The research concludes that sale with the temporary exclusion of usufruct is a valid contract in Islamic law. When the usufruct is priced at market rate, the financing arrangement is genuinely Islamic and brings added value. Moreover, it is very effective in addressing risks for Islamic banks, particularly in countries with legal systems not designed to accommodate Islamic finance. Originality/value This study systematically examines all aspects of a contract that has not received sufficient academic attention, that has been underutilized by the Islamic finance industry and that is more fitting for implementation than many of the contracts currently being used.

Zakah on shares: Theory and reality in Malaysia

Zakah (Islamic almsgiving) on shares are generally mentioned indirectly in classical fiqh books. This is due to the fact that the practice of shares is relatively new in classical Islamic jurisprudence literature. However, the basis of the debate on shares can be traced to its establishment and development in the classical fiqh discourse. Muslim individual and Muslim-operated companies have been involved in investment and share-trading, thus creating the debate of zakah on shares in Malaysia. Therefore, the objective of this study is to highlight the discussion of zakah on shares based on the reality in Malaysia. The focus of the debate will touch the aspects of legal shares, fiqh of zakah and its method of calculation.

Keadilan Distributif atas Pembagian Harta Bersama dalam Perkawinan bagi Keluarga Muslim di Indonesia

The division of marital joint property after the breakup of marriage, whether dropping out of marriage due to divorce or due to death, is a new thing in Islamic jurisprudence (fiqh). This is because the concept of mutual treasure is not known in the books of classical Islamic jurisprudence of Muslim scholars of the schools at their times, in which their work are always made as referral in the legal cases up to the present days. In Indonesia, the distribution of common property is regulated in the Compilation of Islamic Laws Articles 96 and 97, which stipulate the rules of distribution of joint property for married couples whose married are off as a result of divorce or death. Article 97 of the Compilation of Islamic Law actually provides an overview of the flexibility of the distribution of common marital property, including in certain cases because the article is regulating (regelen) rather than forcing (dwigen), so that the division is not absolutely divided equally between husband and wife, and casuistically the provisions of that article may be disregarded.

Sexual Violation in Islamic Law: Substance, Evidence, and Procedure

Sexual Violation in Islamic Law: Substance, Evidence, and Procedure