Islamic Law Experts Research Articles

Analysis on the Thoughts of Imam Abu Hanifah and Imam Syafi’i on the Ijtihad Method for Sukuk Instrument

The paper aims to analyse the thoughts of Imam Abu Hanifah and Imam Syafi’i on sukuk instruments. This paper is divided into two parts. The first part presents the need yet destructive forces of globalization and free trade era in today’s civilization dominated by a capitalistic system which had inadvertently caused global financial crisis and accelerated the issue on poverty, knowledge deficiency and moral decadence. These destructive forces have led to the rise of the Islamic economy concept, amongst others on the need for sukuk instruments. The discussion focuses on sukuk instrument as sukuk has an important role in free trade to fulfill the increased extraordinary economic needs of Islamic countries as well as to realize the economic needs of the entire world. The second part of the paper then analyses the legal aspects of sukuk being a subject of ongoing debate among the experts of Islamic law that seemingly has a negative tendencies on the development of sukuk. The group that rejects sukuk are influenced by the qiyas (analogical) method of Imam Syafi‘i who assumed that sukuk has the conventional elements of risk (gharar) and gambling (maisir). The group that accepts sukuk is influenced by the thoughts of Imam Abu Hanifah who assumed that sukuk is a case of individual interpretation and judgment of Islamic law that should go through the ijtihad method. It is found that both schools of thoughts in essence accepted sukuk as an Islamic financial instrument. This is because Imam Abu Hanifah relied on the istihsan method whilst when Imam Syafi‘i digressed from the qiyas method and used the takhsis theory, the resource levels of legal sources theory and the language approach theory. These theories relied by Imam Syafi’i are all in essence the istihsan theory according to Imam Abu Hanifah.

TINJAUAN HUKUM FIKIH TERHADAP HADIAH TABUNGAN DAN GIRO DARI BANK SYARI'AH

This article explains about the Islamic law of gift from Bank to customers related to saving and gyro accounts of Islamic Bank. The Islamic Banks give gift directly and indirectly to new ettstomers and old customers through drawing (qur'ah) or lottery and non-drawing. There are disputes (ikhtilaf) among Islamic Law Experts (Fuqaha’) about the status of law when Islamic Banks give the gift. Hanafi and Syafi'i Schools of thought opined that the gift can be given to the customers as long as there is no agreement between bank and costomers meanwhile the banks still have a debt to consumers, this is permissible. Maliki and Hanbali schools opined that the gift is not permissible during the time of borrowing and lending. Majority Islamic Exsperts allow to give gift after banks have already paid­ back the debt to consumers as long as there is no agreement between bank and cusiomers, but Maliki School do not allow lo give gift at that condition. Also, for giving gift should free from gambling or elements of gambling (muqamarah). The method of this article is using literature reviews from classical Islamic Law's books and contemporary Islamic law's books related to drawing or lottery and gambling, meanwhile the aims if this mticle are to investigate the law status if gift from bank to new customers and old customers with direct and indirect ways.
 
 Keywords : gift, saving and gyro accounts, disputes, drawing and elements of gambling

The Decline of the Ākhūnd and the Transformation of Islamic Law under the Russian Empire

In the seventeenth and eighteenth centuries, the ākhūnds were the elite of the ʿulamāʾ in the Russian empire. The highest experts in Islamic law, the ākhūnds were charged with upholding Islamic legal institutions and functions, including qaḍāʾ and iftāʾ. This made them an obvious focal point for Russian attempts to co-opt these institutions in the eighteenth century. With the founding of the Muslim Spiritual Assembly in 1788, the ākhūnds were brought under Russian state control. They soon found their legal function circumscribed and marginalized within the state religious hierarchy, and, by 1900, they had drifted into obsolescence. As the embodiment of Islamic legal institutions in the region, the history of the ākhūnds parallels that of Islamic law in the Russian empire. By studying references to ākhūnds from before and after the establishment of the Spiritual Assembly in regional biographical dictionaries, as well as the writings of various ākhūnds, we can trace the changes in Islamic law that took place under Russian state control.

Kewenangan Pemerintah Aceh terhadap Pelaksanaan Fungsi Mahkamah Syar’iyah dalam Sistem Peradilan Nasional (Tinjauan tentang Kewenangan Yustisi dalam Otonomi Khusus)

ABSTRACT: This is the research explaining the legal status of and the existence of the Islamic Law Court in national judicial system, the authority of Aceh Government in enacting the local law derived from Islamic rules as a regulation for the court in acting in national judicial system. The rules would be a guidance for the court in fulfilling the justice for Moslems in Aceh thus the court would be more effective in holding its functions and the constraints faced by the Aceh Government and the court in implementing Islamic Law as a concrete action to fulfil the needed justice in society. The data are gathered by conducting library research and interview with the Islamic Law experts and the experts of criminal justice procedure and civil procedure law which then the data are discussed through. In order to complete the data gathered from library research, field research is also conducted. The gathered data both from library and field research is analysed by qualitative normative approach then described descriptively. The findings shows that the Act Number 11, 2006 regarding Aceh Governance has strengthened the legal status and the existence of the court as an Islamic Judicial Court inAceh Province that is apart of the national judicial system. Unlike, the Act Number 18, 2001, the authority that has been conferred to enact substantive and procedural law of the court has not been applied seriously even this is not priority. Therefore, it has not been able to give law certainty and protect the society from undue law process. The main obstacles faced the practitioners are an unavailable of process law, especially criminal Islamic process law. The Authority o f Aceh Government Towards t he Conduct o f Mahkamah Syar’iyah i n National Judicial System (A Study o n a Judicial Authority i n t he Context o f Special Autonomy)

Medical Experts & Islamic Scholars Deliberating over Brain Death: Gaps in the Applied Islamic Bioethics Discourse

The scope, methodology and tools of Islamic bioethics as a self-standing discipline remain open to debate. Physicians, sociologists, Islamic law experts, historians, religious leaders as well as policy and health researchers have all entered the global discussion attempting to conceptualize Islamic bioethics. Arguably, the implications of Islamic bioethical discourse is most significant for healthcare practitioners and their patients, as patient values interact with those of healthcare providers and the medical system at large leading to ethical challenges and potential cultural conflicts. Similarly the products of the discourse are of primary import to religious leaders and Imams who advise Muslim patients on religiously acceptable medical practices. However, the process and products of the current Islamic bioethical discourse contains gaps that preclude them from meeting the needs of healthcare practitioners, religious leaders, and those they advise. Within the medical literature, published works on Islamic bioethics authored by medical practitioners often contain gaps such as the failure to account for theological debates about the role of the intellect, ‘aql, in ethical decision making, failure to utilize sources of Islamic law, and failure to address the pluralism of opinions within the Islamic 1 Address correspondence to: Aasim I. Padela, RWJF Clinical Scholars Program, 6312 Med Sci Bldg I, 1150 W Med Center Drive, University of Michigan, Ann Arbor MI 48109-5604; email: aasim@umich.edu; phone: 734-647-4844. © 2011 Hartford Seminary. Published by Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main Street, Malden, MA 02148 USA.

Aborsi Dalam Perspektif Fiqih

Islam has a deep respect for human life, and as such abortion is basically forbidden in Islam. Experts in Islamic law agree that abortion conducted after the foetus is considered to have a soul (after 4 months or 120 days) is forbidden. Nevertheless, Islamic scholars have different opinions in cases where the foetus does not yet have a soul; some permit it, and some forbid it. Those experts in Islamic law who allow it include lbnu 'Abidi from the Hanafi school and lbnu Qudamah from the Hambali school. Meanwhile, those who forbid it include Imam al-Gazali from the Syafi'i school. The writer of this article tends toward the opinion that forbids abortion even when the foetus does not yet have a soul. Nevertheless he does believe that a person may have an abortion in an emergency situation such as to save the life of the mother.