Islamic Legal Reasoning Research Articles

Islamic Law Challenges in Addressing Human Trafficking and Sexual Exploitation

Human trafficking and sexual exploitation remain complex global problems. Islamic law, as one of the legal systems in the world, has a strategic role in participating in overcoming this problem. However, the Islamic legal norms implementation requires support from the state and society. This research discusses the strategic role and challenges of the law in overcoming human trafficking and sexual exploitation. The research method used normative Islamic law with a philosophical approach. The analysis technique used prescriptive analysis, with the analysis process using Islamic legal reasoning. The research results show that Islamic law has a strategic role in resolving the problem of human trafficking and sexual exploitation. The argument is that, philosophically, Islamic law emphasizes the importance of maintaining human honor and dignity, while theoretically, Islamic law recognizes two main concepts in punishment, namely hudud and ta'zir. Hudud is a punishment determined by Allah and has clear rules in the Quran and Hadith. Meanwhile, ta'zir is a punishment determined by a judge for the benefit of society. The challenges of Islamic law in overcoming human trafficking and sexual exploitation are a lack of understanding of Islamic legal norms, which requires human values and justice; Islamic law is not implementable; and there is a perception that the principles of Islamic law can only be applied in Islamic countries. Therefore, global Muslim countries and communities are the main actors in maximizing the application of Islamic legal principles in overcoming human trafficking and sexual exploitation.

Renegotiating the Islam and Development-Nexus in Indonesia: Fikih Peradaban as a Middle Ground between Local and Global Development Paradigms

I n 2015, the United Nations introduced the that aims at globally achieving concrete Sustainable Development Goals (SDGs). Today, sustainable development has become the dominant development narrative in 2030 Agenda, a new development paradigm international cooperation discourse, despite criticism of its top-down approach and secular bias. This explorative article discusses the potential of Indonesian Islamic concepts, such as Nahdlatul Ulama’s Islam Nusantara and Fikih Peradaban, to contribute to the sustainable development discourse from an Islamic perspective. By mapping the current intellectual debate on Fikih Peradaban, I demonstrate that Fikih Peradaban is a particularly suited approach as epistemologically and conceptually it occupies a middle ground position that mediates between local and global development paradigms. I further argue that Fikih Peradaban’s focus on the concepts of humanism, humanist Islam (or Islamic humanism), and Islamic legal reasoning in the service of all people regardless of religious affiliation may contribute to its global appeal and effectiveness. The article draws on notes taken at a conference on “Islam Nusantara and World Peace” (February 5, 2023) in Surabaya as well as notes taken at the first Fikih Peradaban conference (February 6, 2023) in Surabaya. It is also based on a close reading of official material that accompanied the latter conference. Furthermore, I embed the discussion on the nexus between Indonesian Islamic concepts and sustainable development into the broader academic and policy debate on the role of religion within sustainable development. Hence, this article is connected to the research project “Freedom and Development? Religious Actors, Freedom of Religion and Belief, and Sustainable Development” conducted by the German Institute for Global and Area Studies, Hamburg, from 2020 to 2023.
 Keywords: Indonesia, Fikih Peradaban, humanist Islam, sustainable development

Norms and Values in Islamic Legal Reasoning: The Case of Listening to Music (Samāʿ)

This essay examines the ways in which pre-modern Muslim jurists adapted their legal methods to accommodate the complexity of the act of listening to music. I classify those methods from the least to the most inclusive of underlying notions of moral value. This study shows that models on opposite ends of the spectrum function in similar ways. Whether, as in Ibn Ḥazm’s work, the scope of legal norms is confined to the immediate textual meaning, or, as in Ibn Taymiyya’s thought, the formulation of norms corresponds to an underlying moral aim, the result is a broad treatment of all phenomena that relate to music (samāʿ). By contrast, Ghazālī’s discussion of samāʿ is guided by the need to attain conviction of the appropriate course of action rather than the pursuit of an objective truth about the legal-moral status of the act of listening to music, resulting in a subtle case-by-case evaluation, rather than an overarching judgment. While this study does not attempt to give a comprehensive historical account of how and why scholars of Islamic law attempted to restrict or permit certain musical experiences, we can ultimately see how the sharīʿa, a legal system that is fundamentally concerned with moral behavior, purported to advance reasonable models for the assessment and regulation of complex social phenomena.

Legal Maxims of Ba’i Ibn Al-Arabi’s Contract and Their Relevance to Contemporary Muamalah Maliah Issues

The legal maxims of the ba'i contract are inductive Islamic legal reasoning, so their implementation has a static and dynamic character. Apart from al-Arabi, attention to two characters in one theme of fiqh (Islamic Jurisprudence) rules is rarely discussed by Islamic jurists. It is one of the reasons for the failure to dynamize the theory and practice of Islamic economic law, resulting in various criticisms. This research discussed the legal maxims of the ba'i contract of al-Arabi in Al-Masalik fi Syarh Muwatta Malik and their relevance to contemporary muamalah maliah issues to provide complete answers to various criticisms in contemporary Islamic legal theory and practice. The research method used normative Islamic law with a conceptual, philosophical, and historical approach. The data collection technique used a document study of Ibn al-Arabi's work "Al-Masalik fi Syarh Muwatta Malik" related to the fiqh rule on the Ba'i contract. The analysis technique was prescriptive analysis with logic and inductive legal reasoning. The research results show the ten fiqh rules of the ba'i contract developed by al-Arabi that have static characters, namely usury, garar or jahalah, consuming wealth in vanity, and deceit (gasysi). Besides, those with dynamic characters are urf, emergency, and maqasid al-syariah/sadd al-zariah. The rule fiqh is relevant to contemporary muamalah maliah contract issues, such as cashback systems, dropship systems in online buying and selling, stock sales, pre-order systems, and electronic transactions (e-money). Therefore, these rules can be used as an ‘illat (ratio legis) for resolving problems in the contemporary muamalah maliah contract.

Configuration the Thought of Islamic Law Throught Social Media in Indonesia

This study shows the reasoning behind Islamic law, which has recently become popular, along with the popularity of preachers through social media. Three themes of analysis are discussed in this study: the law of wishing Merry Christmas, the law of celebrating birthdays, and the law of music. Judging from the source, this research is text research. The text to be studied is in the form of lectures by well-known preachers on YouTube social media. This study uses an interdisciplinary approach, which combines discourse analysis with Islamic legal philosophy (ushul fiqh). The mapping of Islamic legal reasoning in this study is seen from two aspects, namely, the aspect of legal status and the aspect of legal methodology. This study found that the contestation occurred from legal status, as evidenced by the diversity of sources' opinions on the three issues examined here. In the methodological aspect, the contestation continues, both at the stage of the reasoning model, discovering maqshid sharia, and developing the theory of Islamic law. This study also found that using reasoning models positively correlated with the legal status they conveyed.

General philosophy of Islamic law (Maqāsid) and identification of some flaws in conventional legal theories (Usūl al-fiqh) By Dr SLM RIFAI.

The primary objective of this paper is to examine some aspects of flaws in the conventional legal methodologies of Islamic law. It also explores some socio-political, historical, and theological factors that contributed to the stagnation of creativeness in Islamic legal reasoning. This paper also compares the Islamic legal methodologies with western legal traditions. It proposes some radical changes in Islamic legal reasoning and interpretation methods in religious texts. It also proposes some kinds of systemization in Islamic legal methodologies to meet the demands of modern social changes in all walks of life. It also explores the inherent relations between social and legal changes in Islamic law.

Discourses of Principles of Ijtihad and Ibn e Hazm’s Approach: an Analytical Study

Ibn e ?azm was a notable and leading scholar of al-??hir?yyah. He extended enormous research work in the multiple Islamic sciences such as principles of jurisprudence (‘U??l), fiqh, and comparative study of religions & Islamic philosophy. He presents novel idea regarding juristic effort or Islamic legal reasoning (Ijtih?d). Ibn e ?azm negates the very concept of analogical reasoning (Qiy?s) and calls for mandatory adoption of ijtihad on everyone. Moreover, he mandates few necessary requirements for an Islamic jurist (mujtahid). Further elaborating his notion on this point, he presents different rankings of a mujtahid regarding their right and wrong inferences while performing juristic work. This paper presents such ideas especially discourses of principles of Ijtih?d by Im?m Ibn e ?azm.

Istihsan and Istishab in Islamic Legal Reasoning: Towards the Extension of Legal Finding in the Context of Indonesia

This article explores the debate among Muslim jurists on istiḥsān and istiṣhāb and the ability of both to solve Islamic legal cases in Indonesia. The research is done through normative legal approach by referring to various literatures in the elaboration of legal concepts. The concepts of law (istiḥsān and istiṣhāb) are discussed and become the central topic. At the end, those concepts are applied in the cases to draw normative conclusions. The result of this research shows that though istiḥsān and istiṣhāb are still debatable, both of the two have a strong influence and relevance to be applied. In the Indonesian context, istiḥsān and istiṣhāb reasoning, may be combined or separated, can be used to promulgate the obligatory registration of marriage, the application of health protocol of Covid-19 during prayer in the mosque in the time of pandemic, and possibility of using credit card and e-commerce for transaction, the acceptance of Pancasila as the basis of the Republic of Indonesia, the legitimacy of 1945 constitution, democracy, and current principles of modern jurisprudence (such as the principles of pre-assumption of innocent). That is due to the fact of their virtues for public life (maṣlaḥah muḥaqqaqah), and no exact prohibition is found in al-Qurʼan and Hadith (ibāḥah aṣliyyah). In short, by using istiḥsān and istiṣhāb, such mentioned recent cases may be solved and logics of legal reasoning can be extended.

Istihsan and Istishab in Islamic Legal Reasoning: Towards the Extension of Legal Finding in the Context of Indonesia

This article explores the debate among Muslim jurists on istiḥsān and istiṣhāb and the ability of both to solve Islamic legal cases in Indonesia. The research is done through normative legal approach by referring to various literatures in the elaboration of legal concepts. The concepts of law (istiḥsān and istiṣhāb) are discussed and become the central topic. At the end, those concepts are applied in the cases to draw normative conclusions. The result of this research shows that though istiḥsān and istiṣhāb are still debatable, both of the two have a strong influence and relevance to be applied. In the Indonesian context, istiḥsān and istiṣhāb reasoning, may be combined or separated, can be used to promulgate the obligatory registration of marriage, the application of health protocol of Covid-19 during prayer in the mosque in the time of pandemic, and possibility of using credit card and e-commerce for transaction, the acceptance of Pancasila as the basis of the Republic of Indonesia, the legitimacy of 1945 constitution, democracy, and current principles of modern jurisprudence (such as the principles of pre-assumption of innocent). That is due to the fact of their virtues for public life (maṣlaḥah muḥaqqaqah), and no exact prohibition is found in al-Qurʼan and Hadith (ibāḥah aṣliyyah). In short, by using istiḥsān and istiṣhāb, such mentioned recent cases may be solved and logics of legal reasoning can be extended.

Nikah Beda Agama Dalam Pandangan Liberalis dan Peraturan Perkawinan di Indonesia

Tulisan ini membahas intelektual muslim liberal melihat pada pernikahan agama lain, dengan alasan bahwa muslim liberal penilaian pada legalitas pernikahan agama antar bertentangan dengan pernyataan dari hukum negara yang ada pada pernikahan seperti UU RI No 1 Tahun 1974, PP RI Nomor 9 Tahun 1975, dan Kompilasi Hukum Islam. Selanjutnya, dengan menggunakan penalaran hukum Islam, tulisan ini menekankan bahwa kerugian (mudharat) pernikahan antar-agama lebih berat dari pada keuntungan (maslahah) dan karena itu pendapat intelektual muslim liberal kurang relevan dengan konsep Islam.

The Relation between Arabic Linguistics and Islamic Legal Reasoning: Islamic Legal Theory Perspective

In this article, the writer studies the relation between Arabic linguistics and the process of Islamic legal reasoning from an Islamic legal theory perspective. The question raised regards how Muslim jurists and legal theoreticians perceive the importance of Arabic linguistics as a part of the methodological tool in extracting Islamic legal norms from their sources, the connection of the two disciplines in theoretical level, and their mutual influences. The study shows that Muslim jurists and legal theoreticians agree unanimously that Arabic language mastering is an indispensable condition for a mujtahid to be valid. Further, Muslim jurists and legal theoreticians rely heavily in many cases on the grammatical rules set by the Arab grammarians and integrate these rules into the construction of their legal theory. Nevertheless, they do not merely transfer these rules as such into uṣūl al-fiqh but develop them to the extent to which the grammarians themselves do not attain.[Dalam artikel ini, penulis menelaah hubungan antara ilmu bahasa Arab dengan proses penetapan hukum Islam dari perspektif ilmu uṣūl al-fiqh. Pertanyaan yang dibahas berkisar pada bagaimana para fukaha dan teoretikus hukum memahami pentingnya bahasa Arab sebagai bagian dari metodologi dalam menetapkan norma-norma hukum Islam dari sumbernya, hubungan antara ilmu bahasa Arab dan ilmu uṣūl al-fiqh dalam tataran teoretis, serta pengaruh timbal balik antara dua disiplin ilmu tersebut. Studi ini menunjukkan bahwa para fukaha dan teoretikus hukum sepakat bahwa penguasaan bahasa Arab merupakan syarat mutlak bagi seorang mujtahid agar ijtihadnya sahih. Lebih jauh, dalam banyak kasus, para fukaha dan teoretikus hukum sangat bergantung pada aturan-aturan gramatika yang ditetapkan oleh para ahli tata bahasa Arab dan mengintegrasikan aturan-aturan ini ke dalam konstruksi teori hukum mereka. Namun demikian, mereka tidak hanya mengalihkan aturan-aturan ini ke dalam teori uṣūlal-fiqh tetapi mengembangkannya lebih jauh sesuai yang keperluan.]

POVERTY REVISITED: PRESENTING POVERTY THE NORMATIVE WAY

This paper delves into the issue of poverty from the Islamic perspective. Particularly, the author aims to present the concept of poverty in the “normative” [as it ought to be] way and enquires whether concerns regarding poverty, or the state of poverty, is for Muslims a justified issue. In other words, are the absence of material supplies and wealth widely seen today in a negative light or is it the real or true poverty - as represented by the Qur’ān (Allah) and (Sunnah) His Messenger (PBUH) - really the poverty worth focusing on? Without adequately understanding what poverty is there cannot be effective solutions and interventions. Employing scriptural evidence vis-à-vis Islamic legal reasoning, we argue that normative poverty, in accordance with the Islamic tradition, is the real poverty and not material poverty.

Semiotics of Islamic Law, Maṣlaḥa, and Islamic Economic Thought

The paper explores the role and meaning of maṣlaḥa (social utility) and its possible appropriation in the field of Islamic legal and economic thought, as laid down by various medieval and contemporary Muslim scholars. Questions that are pertinent to the research are the following: how has maṣlaḥa been incorporated in legal reasoning and what kind of meaning does it convey; what type of economic (and/or legal) reading does it presuppose; do ethics, law, and scriptural sources play equally important role as reference in developing the concept in economic terms, are some of the questions that this paper will try to provide answer to. Further, as there is a tendency to believe that Islamic economic thought cannot be equated only with legal and juridical underpinnings, it is pertinent to pose a question if economic ideas have flourished independently from its legal framework. Maṣlaḥa in its capacity has always remained part and parcel of Islamic legal theory, and has been rarely addressed within the frame of economic thought; therefore a new reading is required to deal with the position of economic teachings within Islamic tradition. The paper consists of three sections, whereby the contributions made by Muslim medieval scholars on Islamic economics will be presented. The first chapter provides a historical overview of Islamic law and the concept of maṣlaḥa in relation to the field of Islamic economics, including Abu Hamid al-Ghazali’s monumental Iḥya ‘ulūm al dīn (Revival of Religious Sciences), which presents a milestone in converging Sufi ethical teachings of Islam in accordance with the legal methodology of Islamic law. The second part aims to discern and examine the economic jurisprudence and economic theory in Islam as it is understood by some of the mainstream theoreticians of Islamic (economic) studies, advocating the view that Islamic economics is inextricably related to the gist of Islamic legal reasoning. In this section the ideas of Muhammad Baqr al-Sadr will be presented as he proposes a new reading of Islamic economics as a doctrine and not a science. The third part questions Islamic legal establishment and its normativity, the claim that legal norms have always been part of the Islamic economic reasoning. This claim rests upon the idea that Islamic legal patterns were also socially constructed, including some aspects of Islamic economic reasoning. Concluding remarks will draw upon the idea that despite the fact that Islamic legal and economic literature are based upon the religious scriptures of Islam, the Qur’an and Tradition, it is more appropriate to claim that they rest upon the ethical cosmology that surpasses purely theological concerns.

Book Review: Mālik and Medina: Islamic Legal Reasoning in the Formative Period, written by Umar F. Abd-Allah Wymann-Landgraf

Book Review: Mālik and Medina: Islamic Legal Reasoning in the Formative Period, written by Umar F. Abd-Allah Wymann-Landgraf

WHITHER ISLAMIC LEGAL REASONING? The Law and Judicial Reasoning of The Religious Courts

The article analyses the judicial reasoning employed by the religious courts in giving decisions on inheritance, particularly since the promulgation of the 1991 Compilation of Islamic Law. It seeks to examine whether these courts use Islamic legal reasoning. This paper argues that the structure of the courts' decisions is to be found in most Civil Law courts. It then offers three different approaches of reasoning employed by the religious courts in their decisions on inheritance: the use of the legislations particularly the Compilation as the sole source of deductive reasoning, the combination of the legislations and the Islamic sources which share the same implication, and the application of Islamic legal reasoning with the emphasis on the objectives of Islamic law (maqāsid al-sharī'a) which does not contradict the legislations. Although Islamic legal reasoning is employed, in most cases the decisions are simple and straightforward.

Ijtihad into philosophy: Islam as cultural heritage in post-Stalinist Daghestan

Starting in 1960, authors of various Daghestani nationalities initiated a re-evaluation of the role of Islam in the history of Daghestan. An important historical personality to draw upon was Muhammad al-Quduqi, a Daghestani Islamic legal scholar of the late seventeenth and early eighteenth centuries. Quduqi was known for his sympathies towards ijtihad (Islamic legal reasoning by analogy) and for his call to replace customary law by Islamic law. This article studies how Quduqi was brought back into Soviet discourse in 1960, and how his advocacy for ijtihad was subsequently interpreted in Marxist terms as a quest for philosophy, rationalism and progress, with secularizing terms drawn from the discourse of Daghestani Jadids of the 1920s and 1930s. A comparison is then made with Soviet Tatarstan, where Marxist historians constructed a similar autochthonous trajectory of Tatar-Islamic progress and enlightenment. In both cases, Islamic concepts were taken out of context and used for the construction of a secularized national Muslim cultural heritage (miras) that would prepare the ground for socialism – with the difference that in Daghestan, this Muslim Mirasism was multi-ethnic in character.

Mālik and Medina: Islamic Legal Reasoning in the Formative Period, by Umar F. Abd-Allah Wymann-Landgraf

Mālik and Medina: Islamic Legal Reasoning in the Formative Period, by Umar F. Abd-Allah Wymann-Landgraf

Islamic Law and Social Change: An Insight into the Making of Anglo-Muhammadan Law

A majority of scholars criticize British Indian Courts for making Islamic law rigid and stagnant by relying only on the translations of selected classical legal texts and operating under the doctrine of precedent. This paper challenges that view. It argues that Anglo-Muhammadan law responded to social change by providing a venue for discourse to various classes of society. Judges, lawyers, legal commentators, ulema and politicians played an active role in the making and functioning of the legal system, despite holding divergent views. This paper focuses on the historical legal process by which shares and securities, along with similar types of incorporeal property, became a valid subject matter of waqf. As shares and securities were a new type of property under Islamic law, judges initially refused, on the basis of classical legal texts, to accept them as a valid subject matter of waqf. However, Muslim legal commentators supported such waqf, arguing that Islamic law accommodates social change. This view prevailed in the end, but the legal controversy around it stretched over three quarters of a century. By examining this historical legal process, this paper provides insights into the making of Anglo-Muhammadan law and identifies the contribution of various actors to its formation and development.

Aplikasi al-Qawâ‘id al-Fiqhîyah sebagai Nalar Deduktif dalam Istinbât Hukum Islam

This paper discusses the application of <em>al-qawâ‘id al-fiqhîyah</em> (legal principles) as deductive reason in legal reasoning through <em>us</em><em>ûl al-fiqh</em> approach. This paper seeks to answer a problem of how deductive reason using <em>al-qawâ‘id al-fiqhîyah</em> is regarded as the source of Islamic law in the perspective of classical and contemporary religious scholars (<em>ulama</em>). Basing mainly on the legal approach, this paper argues that not all ulama are familiar with, and therefore, employ <em>al-qawâ‘id al-fiqhîyah</em> in the making of Islamic legal opinion. This study concludes that the views of classical and contemporary ‘ulama on this issue can be classified into three groups: a) those who categorically reject legal principles as direct reference of Islamic legal reasoning; b) those who permit the use of legal principles as evidence or reference in legal reasoning; and c) those in the middle position, permitting the use of legal principles as reference on the condition that this principle should be derived from the primary source of Islamic law (al-Qur’ân and Sunnah), not from the legal thought of jurists.

Nikah Beda Agama Dalam Pandangan Liberalis dan Peraturan Perkawinan di Indonesia

This paper examines the liberal muslim intelectuals view on inter-religious marriage, arguing that liberal muslim's judgment on the legality of inter-religious marriage is in contradiction with the pronouncement of the exiting state law on marriage such as no 1 tahun 1974, no 9 tahun 1075 and the state compilation of islmaic law (Komilasi Hukum Islam), furthermore,using islamic legal reasoning, the paper staress that the disadvantages (mudarat) of inter-religous marriage overmeigh its advantages (maslahah) and therefore argues again is legality as proposed by liberal muslim intelectuals.