Development Of Islamic Jurisprudence Research Articles

Perkembangan Fikih dalam Era Digital: Kajian terhadap Metode Ijtihad dalam Memahami Masalah Kontemporer

In the digital era marked by advancements in digital technology and globalization, the development of Islamic jurisprudence (fiqh) faces significant challenges. This research aims to uncover the crucial role of the ijtihad method in the context of understanding and formulating legal views on contemporary issues arising in the digital age. The research methodology employed is normative research, involving theoretical, philosophical, and jurisprudential analyses within Islamic fiqh. The study investigates the impacts of the digital era and shifts in the global paradigm on the development of Islamic jurisprudence. The primary focus of the research is to explore how the ijtihad method can adapt to the context of digital technology and the challenges of modern ethics. The research underscores the importance of adaptation and a profound understanding of Islamic law to address the changing times. The results of this research provide valuable insights into how Islamic jurisprudence can remain relevant in addressing contemporary issues that continue to evolve in the dynamic digital era. This study summarizes efforts to maintain the relevance of Islamic law and provide legal perspectives that align with the contemporary dynamics at hand.

JOSEPH SCHACHT`S ROLE IN CHANGING THE STATUS OF ISLAMIC LAW IN NIGERIA

This work looks into the historical and empirical links between Schacht`s theories of the origin of Islamic law and the transformation of its status and epithet in Nigeria. The end of the nineteenth and the dawn of the twentieth centuries witnessed extensive activities of colonialism that shaped the quintessence of the contemporary paradigm at all levels. Islamic law is no exception. British colonialism met some established institutions in the Northern States of Nigeria such as a multifaceted system of Sharia courts which was being manned and administered by an Alkali, an Islamic law judge. At the inception, nothing was done to alter the established law institution. This was accompanied by the introduction of “indirect rule” in the northern part of the country. This period also witnessed intensive activities of orientalists such as Joseph Schacht who worked vigorously on the provenance and development of Islamic jurisprudence. He came up with some theories such as the "living tradition", "popular practice” among others. He concluded that Islamic law did not stem directly from Al-Quran but developed out of popular and administrative practice under the Umaiyads. By that, he tried to cut the link between Islamic law and its primary sources namely Al-Quran and Hadith. These theories were well communicated to colonial authorities who took them as the basis for the assessment and evaluation of Islamic law. It is from this point; the status of Islamic law was out rightly changed from that of religious law to customary law. It is concluded that Schacht`s theories permanently influenced the status of Islamic law in the constitution of Nigeria.

Conflict in Islamic Jurisprudence: Noel J. Coulson’s Historical Approach and His Contribution to the Study of Islamic Law

Islamic jurisprudence (fiqh) has a long history and has stagnated since the Middle Ages, whose impact is still being felt today. Various innovations have been braved enough to violate the boundaries of doctrine between schools of thought in Islamic judicial decisions in its development. It is this issue that Noel J. Coulson describes in Conflict and Tension in Islamic Jurisprudence. This article reviews the approach used by Noel J. Coulson to Islamic jurisprudence by asking two main questions. First, how are Noel J. Coulson’s approach and method in Islamic jurisprudence research? Second, how is Noel J. Coulson’s contribution to the development of Islamic law studies? The writer answered these two questions by using a bibliographic type of research. The author finds that Noel J. Coulson dissects the development of Islamic jurisprudence by using historical and sociological approaches. Noel J. Coulson argues that traditional fiqh (classical to the medieval era), contemporary fiqh and decisions in Islamic law courts constitute an actual legal entity. The author argues that Noel J. Coulson’s historical approach to Islamic law is still relevant so that Islamic law is not considered stagnant.

A Comparative Study of Maṣlaḥah and Mischief Rule: Pakistani Perspective

At present, almost all the legal systems are concerned with establishing a flexible interpretive policy to make the law to resolve the everyday complex issues for the benefit of the people at large. It is, however, a matter of great concern that the higher courts in Pakistan are still following static and foreign interpretive modes like a literal rule, the golden rule, and mischief rule etc, in the presence of dynamic interpretive principles of Islam. In this context, this research aims to analyze critically, the mischief rule and to present maslahah, a vibrant Islamic interpretive principle. This article argues that the Holy Prophet (SAW), his companions and the traditional Muslim jurists had to decide the contemporary issues by the way of maṣlaḥah which led to the development of Islamic jurisprudence and resulted in the ease of the people. While interpretive rules of English common law are static and have become outdated. This research, thus, concludes that unlike mischief rule, maslaha is more flexible and favorable by Islam for resolving the present-day socio-economic issues of the people. It recommends the higher courts of Pakistan to follow the principle of maṣlaḥah during the process of interpretation. It is also acclaimed that the Renaissance of this vibrant principle of ijtihād would be a revival of the interpretive policy of the Prophet (SAW), his companions and the traditional Muslim jurists. It would also lead to the development of Islamic jurisprudence in the light of changed context.

Maslahah’s Role as an Instrument for Revival of Ijtihad

Maslahah is considered to be the last theory in the development of Islamic jurisprudence. Literally, maslahah is an infinitive noun of the root salaha. It has different implication depending on the variety of context in which it is used. Saluha its verb form is used to indicate being good, right, virtuous, honest or to show the state of possessing these virtues. Its use in relational sense denotes a cause, a means, an occasion or a goal which is good or is for good (Lane ' n.d.). When used as a noun it mean something considered good or useful (Rida' n.d.). Madarah (harm) and mafsadah (evil) are its antonyms. In general sense maslahah means welfare (Bosworth 1978). Technically, it means the consideration of the purposes of the law and the means of their realization. Its signification in this sense is clear from Imam al-Ghazali's statement: what we mean by maslahah is protection of the purposes of Shariah which are: preservation of religion, life, reason, descendants and property (al-Ghazali 1949). It also includes the means which lead to preservation of these five principles. Hence, maslahah in its essence is not only securing of benefits and prevention of harm, but it also needs to be in harmony with the objectives of the law-giver. Thus, as a method of interpretation of law it plays a crucial role in providing the ruling for new issues for which there exists no explicit evidence in the texts. It is therefore, a comprehensive method in its nature, for it extends the law to all areas of human activities. This underlying line of thought in the conception of maslahah renders it as a potential instrument for the revitalization Islamic thought. Therefore, this article attempts to analyse its role as a dynamic principle of the methodology of usul al-fiqh (the principle of Islamic jurisprudent) and as an instrument for revival of ijtihad. However, prior to this a brief sketch of the development of the usul al-fiqh is presented in the following.Historical SketchUsul al-fiqh, according to the generally accepted view in traditional Islamic law, governs the judicial process and determines beforehand the methodology that is to be employed by the jurists for the discovery of the law and its application to a given set of facts. In fact, it provides a criterion for a correct understanding and evaluation, for almost every discipline of Islamic knowledge (Kamali 1999). In other words, usul al-fiqh lays down a methodology for jurists to be followed. For this reason it is indispensable for Muslim jurists to have a thorough grounding in Usul. The understanding of a detailed legal theory with its predetermined methodology had not been a prerequisite for the practice of the Islamic law prior to al-Shafii, hence no legal theory had been systematically recorded till the last decade of the second century. However, the law during this period grew from the inner essential core into a highly consistent and mature system (Nyazee 1994). Even though nothing of the discipline now known as usul al-fiqh had emerged with its particular terminology, it does not mean that jurists did not adopt a methodology for the discovery of the law. It only means that no legal theory was expounded so as to understand and analyse this methodology. Nonetheless the various ijtihad processes employed during this period could be classified under the various forms of the principle of maslahah. Thus, the lack of an elaborate legal theory should not be taken to mean absence of a sound methodology. This is because the derivation of detailed rulings on particular issues from the sources of law was a matter of instinct, to the first generation of Muslims, just as they spoke Arabic instinctively. Therefore, there was no need for recording the methodology they used for deriving rulings.Usul al-fiqh as a guideline for mujtahid in various ways of using source materials, was not used until Imam al-Shafii put it to use in his new fiqh (al-Shafii 1338H). From then onward skill in legal theory had to be a prerequisite for jurists. …

Syariah Courts in Malaysia and the Development of Islamic Jurisprudence: The Study of Istihsan

Malaysia is among the countries, which have very close relations with Shafi'i madhhab in term of Islamic Law. This can be seen from the provisions of Syariah Law in Malaysia where the opinion of the Shafi'i madhhab is preferred than other madhhabs. However, the current situations and issues cause that the other opinions from the other madhhabs are also used and practiced in order to provide the best solutions. This is also true in respect on the use of sources of Islamic law, such as Istihsan, Istislah and Qawl Sahabi, which are rejected by the Shafi'i madhhab. Therefore, this study attempts to analyze the development of Islamic law, particularly in the application of the concept of Istihsan in the Syariah Courts in Malaysia. This study has examined a number of cases reported in the Jurnal Hukum issued by the Syariah Judiciary Department of Malaysia (JKSM). The result of this study found that in several cases, the judges have applied indirectly the concept of Istihsan in their judgment. It is also found that it is actually the provisions of the law that allows the Shariah judges to indirectly apply this concept.

Faith, Reason and Statecraft in Contemporary Islam: Interpretations, Interface and Distortions

Role of reason in faith and statecraft in Islam is the central feature that this article attempts to investigate. The underlying argument that constitutes the premise of the paper is the suggestion that faith and reason are mutually amenable, and their sustained bondage is essential for forward movement of the state, its citizenry and the statecraft. A key question being looked at is whether or not intellectual movement in Islam is experiencing stagnation or otherwise. Following a systematic enquiry pathway, the discourse thereforeexamines how, to what extent, and for how long reason has guided development of Islamic jurisprudence and political thought with contingent bearing upon direction of the state and statecraft until contemporary Muslim environment. Among others, the discussion engages with controversies surrounding ijtihad as well as the question of Islam versus modernity with necessary reference to secularism. The paper concludes by resolving the issues raised.

Dead Tradition: Joseph Schacht And The Origins Of "Popular Practice"

AbstractThe theories of Joseph Schacht regarding the provenance and development of Islamic jurisprudence have been as widely criticized as they have been deeply influential. Schacht's detractors have, for the most part, taken issue with his modern version of intiqād al-rijāl (criticism of hadīth transmitters), by means of which he claimed to turn the previously accepted chronology of early Islamic legal evolution - Allāh→Muhammad→Companions→Followers→fiqh —on its head. However, neither critics nor supporters of Schacht are wont to inquire into a more fundamental question: if prophetic exempla and scriptural dicta are, on Schacht's view, only secondary contributors to the formation of sharī a, what then is the ultimate source of the "living tradition" and "popular practice" to which he assigns the primary role in that enterprise? This essay attempts to elicit a straightforward answer to that question from Schacht's elusive writings on the subject, and then puts that answer to the test with the help of two of the rare instances in which Schacht commits himself on this score regarding specific legal issues.

マーリク派におけるヒヤルの適用 -サハヌーンの『ムダッワナ』より-

In Islamic jurisprudence, hiyal (sg. hila) signify “legal devices, ” or skills used to achieve a certain objective through legal methods. They were not ipso facto “evasions of law” as have been understood. It was common to consult with jurists about certain devices to solve legal problems in daily life. Not to neglect is that hiyal were produced as a result of jurists' ever-lasting endeavor to solve all possible problems using all possibilities allowed by the doctrine, and that they therefore made up an authentic part of jurisprudence except some controversial cases. Among the Sunni schools of law, the Hanafis sanctioned h (iyal most extensively, but the Shafi(is and the Hanbalis, even though criticizing some evasions of law, pursued hiyal within the framework of their jurisprudence. It is only the Malikis of whom no single work on hiyal is known. They adopted the principle of “blocking ways (sadd al-dhara)i()” which run against hiyal. Moreover, they never used the term “hiyal” in their legal discussion. However, we cannot conclude that the Malikis had nothing to do with hiyal which played an important role in the development of Islamic jurisprudence, if we examine the Mudawwana.The Mudawwana, ascribed to Sahnun (d. 240/855), a Maliki jurist and qadi under the Aghlabids, is one of the oldest Islamic legal texts. This text shows that jurisprudence in Qairawan had much in common with its Hanafi counterpart in Baghdad as formulated in the Asl. As one of the most important works of Shaybani (d. 189/805), the Asl represents the authoritative transmission of Hanafi doctrine in all fields of law, including hiyal. For this reason, we find many discussions common to Hanafi hiyal-literature and the Mudawwana. These discussions fall into two groups.In the first group, the hiyal suggested by the Hanafis are rejected as invalid by Malik or his disciple, Ibn al-Qasim (d. 191/806), who was the teacher of Sahnun. The basis of this rejection seems to be the Maliki principle of sadd al-dhara)i(, i. e. “blocking roads” that probably lead to an evil end. In the second group, however, Malik or Ibn Qasim, without using the term hiyal, gives his own solutions, and they, in some cases, differ from those of the Hanafis, and, in other cases, agree with them.

On the Development of Islamic Jurisprudence

This article examines the state of Islamic jurisprudence with regard to many sensitive issues, such as the status of women and minorities in Islam, Islam and Democracy, hudud punishments. The author explores the current state of Islamic discourse on jurisprudence and identifies three approaches-traditional, secular and reformist. The paper explores the positions of the traditional ulama and the reformist muj­tahids on the mentioned topics and finds the reformist position more sensible and closer to the position of ihe Qur'an and Sunnah. This paper while advocating neo-ijtihad, makes an impressive case for the merit???? and Islamic credibility of the reformist jurisprudence.

The Early Development of Islamic Jurisprudence

Professor Ahmed Hasan has made a great contribution to the understandingof the early history of Islamic jurisprudence up to the time of al Shafi'i (d. 204A.H.). A few works. such as The Origins of Muhammadan Jurisprudence byProfessor Joseph Schacht, have been published on the early development ofIslamic jurisprudence. and Hasan's work is a valuable addition. Islamic jurisprudenceis a dynamic, ongoing, and virtually limitless subject. The communitycannot survive without it as long as new issues arise to be resolved andIslamized. Thi field of study helps the community to move forward, encouragingmembers to solve new problems that arise in their social lives. Hasan discusseshow jurists debate one another over the extraction of God's law and how.ultimately, uch debates have developed Islamic jurisprndence and the differentlegal schools. ljma' (consensus) and qiyas (analogy) did not exist at the time ofthe Prophet; they developed through ijtihtid, based on the principle sources theQur'an and Sunnah. The subject has a kind of progressive flow, tide, and dynamiccharacter. Hasan divide his book into seven chapter, beside an introductionand a concluding discussion. He also includes a bibliography and an index. Theauthor chose a period in the history of jurisprudence for which sources for synthesisare difficult co obcain. He shows the historical development of lslamicjurisprudence in the first two centuries of Hijrah based mainly on the work ofMalik. Abu Yusuf, al Shaybani and al Shafi'i.This book is designed for readers who are particularly interested in Islamiclaw and history. In the introduction the author describes the meaning of fiqh andother allied terms. He analyzes the origins of the early schools of law-such asthe schools of Medina and Iraq-that developed through the work of scholarswho extracted God's law from the revealed sources. Further analysis by theauthor suggests that after the middle of the second century A.H., scholars weregenerally engaged in independent thinking on law. ln the same way. al Shafi'ideveloped his own legal theory and brought consistency into law. After him theregional character of the early schools began to disintegrate and faithfulness toone master and his principles gradually predominated.The author discusses the sources of Islamic law beginning with the developmentof the main five categories of judgment of Muslims' aces, namely, theobligatory. the recommended, the neutral, the disapproved, and the prohibited.These categories are ultimately based on four sources: the Qur'an, the Sunnah,ijma' and qiyas. The author first deal with the Qur'an, briefly pointing out thatit is the primary source of legislation and guidance. The author discusses thedoctrine of the abrogation of individual verses in the Qur'an (naskh) in a separatechapter, pointing out the development of the theory of naskh and its significantrole in Islamic jurisprudence. Although naskh is an established doctrine inthe field of Islamic jurisprudence, the author's long analysis of naskh suggeststhat since the Qur'an is eternal there can be no reasonable ground for the thesis ...

The early development of Islamic jurisprudence. By Ahmad Hasan. pp. 234. Islamabad, Islamic Research Institution, 1970.

The early development of Islamic jurisprudence. By Ahmad Hasan. pp. 234. Islamabad, Islamic Research Institution, 1970.