Legal Maxims Research Articles

A aplicação do in dubio pro societate na jurisprudência do Supremo Tribunal Federal: uma pesquisa empírica

In jury trials, Brazilian courts apply, during the first phase of the trial by jury, the legal maxim in dubio pro societate. Such practice sparks academic and jurisprudence controversies. How has the Supreme Federal Court (STF) applied and interpreted the principle of in dubio pro societate in its rulings? The research unfolds through qualitative analysis of 37 judicial cases from the STF on the subject. This research reached the following conclusions: there is no express constitutional provision for in dubio pro societate, it being a jurisprudential construct related to the constitutional competence of the jury; the evidence supporting the decision at the end of the first phase of the procedure, regarding the person who committed the crime, must be the evidence produced under the scrutiny of adversarial proceedings, with decisions solely supported by elements gathered in the investigation being prohibited; the standard of proof required to consider indications of the author of an offense is the preponderance of evidence, that is the set of evidence incriminating the accused must outweigh the evidence that would exonerate them, justifying their submission to trial by jury.

Internal Shariah audit change: an identification of specific Islamic legal maxim in Islamic banking institution

Purpose This paper aims to provide insight on internal Shariah audit change process in Islamic banking institution using sociology of translationin and the identification of specific Islamic legal maxim (ILM). Design/methodology/approach This paper gathered findings using qualitative approach where a single case study was selected. The study began with a preliminary study to assist the selection of the case study and later two phases of interviews done at the institution selected as the case study. Findings This paper has provided insights into the internal Shariah audit practices change using sociology of translation that incorporated ILM as the basis to strengthen the Islamic banking operations by achieving maqasid al-Shariah (MS). The findings of this paper provide distinguished insight on internal Shariah audit change process and ILM. The significance of this study is that a new contribution through exploring the viewpoints of the perception that satisfying the minimum legal requirements of Shariah compliance may not be sufficient for proper Shariah audit in IBIs. Therefore, the existence of ILM within a change process serves as a basis for best practices to be able to achieve MS through the means (wasa’il) used in realising IBIs’ objectives. Originality/value The application of ILM to internal Shariah audit change process that would guide Muslim auditors to be in line with Islamic principles. This paper focuses on the application of ILM to the Shariah audit practices changes as ILM embodied ethical value to the general concept of maslahah (well-being) under MS in the period of post-COVID-19.

GENDERED RESILIENCE: ISLAMIC LEGAL MAXIMS AND PANDEMIC RESPONSES AMID INDONESIA’S ENVIRONMENTAL AND SOCIETAL CHALLENGES

Objective: This study aims to explore the intersection of gendered resilience, Islamic legal maxims, and pandemic responses within the context of Indonesia's environmental and societal challenges. It seeks to understand how Islamic jurisprudence and gender dynamics can shape effective responses to crises, particularly in a nation grappling with diverse socio-environmental issues. Theoretical Framework: The research is grounded in the theoretical framework of gender studies and Islamic legal theory. It employs a gender-sensitive lens to examine how Islamic legal principles (maqasid al-sharia) can be applied to foster resilience amidst crises. The study also incorporates environmental sociology to contextualize the socio-ecological challenges faced by Indonesia. Method: Through qualitative methods, including content analysis of religious, legal texts, and case studies, the research examines practical applications of Islamic legal principles in crisis response. Results and Discussion: Findings reveal that gender-sensitive interpretations of Islamic legal maxims improve community resilience and pandemic responses by fostering equitable resource distribution. The study highlights successful case studies and discusses integration challenges in policymaking. Research Implications: Integrating gender perspectives into Islamic legal frameworks can enhance policy and resilience strategies, offering a model for similar contexts in Muslim-majority countries. Originality/Value: This study contributes to the limited body of literature on the nexus of gender, religion, and crisis management in Indonesia. It offers a novel perspective by integrating Islamic legal theory with gender studies, providing valuable insights for scholars, and practitioners aiming to enhance resilience through culturally relevant frameworks.

Revolutionizing Nursing Ethics: The Transformative Power of Islamic Legal Maxims

Revolutionizing Nursing Ethics: The Transformative Power of Islamic Legal Maxims

Sovereignty beyond Borders: Unraveling the Enigma of Airspace and Outer Space Interplay

This paper examines the complex issue of delimitation and sovereignty in airspace and outer space, tracing the evolution of these concepts from ancient jurisprudence to contemporary international law. The study delves into the origins of air sovereignty, emphasizing the legal maxim "Cuius est solum eius usque ad coelum et ad inferos" and the subsequent development of aviation law, including the pivotal Convention on International Civil Aviation. It further explores the nascent field of space law, highlighting the Outer Space Treaty and its designation of outer space as res communis humanitatis. The paper analyzes various attempts to delineate a boundary between airspace and outer space, contrasting the spatialist, functionalist, and "wait-and-see" approaches. It evaluates the pros and cons of establishing a clear demarcation, considering technological advancements and geopolitical tensions. Potential solutions are proposed, including drawing analogies from the Law of the Sea and enhancing the role of international organizations such as ICAO. The paper underscores the urgency of resolving these issues to ensure normative certainty and address the growing congestion in the skies.

A Respective Review of Preferred Islamic Legal Maxims Performed in Malaysia with Spectrum to The Pronouncement of Talak Outside of Court

A Respective Review of Preferred Islamic Legal Maxims Performed in Malaysia with Spectrum to The Pronouncement of Talak Outside of Court

NUSHŪZ IN ISLAMIC FAMILY LAW

The ongoing family conflicts cannot be separated from the neglect of the position of the husband and wife in Islamic family law, known as nusūz. The purpose of this study is to understand Mufassireen's interpretation of nusyūz. This study is a qualitative research, a literature survey with an interdisciplinary approach - philosophical, Historical, psychological, sociological, and Islamic law approach - and a descriptive analysis from various sources such as tafsir, hadith, Islamic Yurisprudance, legal maxim and legislation. The meaning of nusyūz in al-Nisa 4:34 according to Mufassireen is similar. The difference between classical mufassirs and contemporary mufassirs is that classics allow and contemporary ones reject wife beating. There is also an interpretation of verse al-Nisa 128, where commentators argue that the husband's nusūz means relinquishing rights and obligations due to polygamy and unequal living, and the form of resolving the husband's nusūz is through advice and mediation. The judge's decision in resolving husband and wife nusu'us problems was the judge's reference to al-Baqarah paragraph 241, School Al-Dzahiriyah Article 39 paragraph 2 of Law Number 1 of 1974 concerning Marriage, Articles 149 and 241 Compilation of Islamic Law of 1991 as the implementation of takhsis al- qada is based on benefit which refers to the Islamic legal maxim Hukm al-Hakim Yarfa al-Khillaf, Tassaruf al-Imam Ra'iyah Ala Manut bi al-Maslahah.

Application of the rules of Al-Mubâsyir and Al-Mutasabbib in Islamic economic law (Mu'âmalah Mâliyyah)

Legal maxims are essential in determining Islamic law and resolving branching legal problems. Scholars have formulated legal maxims to address issues related to mubâsyir and mutasabbib, as well as legal responsibility. This research aims to describe the legal maxims formulated by the ulama, particularly those related to mubâyir and mutasabbib, and analyze their application in sharia economic law. The research uses a normative juridical approach and uses secondary data for qualitative data analysis. The results show that the ulama have formulated at least five rules related to mubâyir and mutasabbib jurisprudence: (1) If the direct perpetrator and cause come together, the law relies on the direct perpetrator; (2) The direct perpetrator must be held responsible even if not intentional; (3) The cause is not responsible unless intentional; (4) An action is based on the perpetrator, not the person who orders it; and (5) An animal's error is not the owner's responsibility.

IMPLEMENTASI KAIDAH AL-KHARAJ BI-ADDHAMAN DALAM PEMBIAYAAN SINDIKASI SYARIAH DALAM PERSPEKTIF HUKUM EKONOMI SYARIAH

The goal of this study is to describe the application of the Al-Kharaj Bidhdhaman rule, which specifies who bears the risk and who is entitled to a well-known benefit in sharia business contracts, particularly when applied in syndicated financing carried out by financial institutions as viewed through the lens of sharia economic law. This is a library study that employs qualitative descriptive research methods. Secondary data from books, journals, and other research results are used by researchers to describe the rules in sharia business contracts, also known as legal maxims, and theories about syndicated financing in financial institutions such as banks, which are then normatively analyzed in accordance with laws and regulations. According to the study's findings, the al-Kharaj Bidhdhaman Rule is also a very important rule in syndicated financing-based business activities at Islamic Banks, which is implemented in the agreed clauses in the contract used by customers, bank leaders, and participants of sharia syndicated financing, where the profits obtained by the parties are adjusted to the value of the syndicated participants' capital and the value of the syndicated participants' capital In mudharabah and musharakah-based contracts, the same value is applied for responsibility for the emergence of risks, including losses, which are, of course, excluded if they occur due to force majeure.

The Permissibility of Utilising Stem Cells in Biomedical Treatment in ASEAN Countries: Religious Compliance Perspective

With the rise of the halal market, more and more technologies are being used which are not specifically sanctioned by the Quran or the Sunnah. The use of stem cells in biomedical treatment, which has been claimed to have numerous beneficial effects on humans, was one of these subjects. Stem cell therapy represents a revolutionary development in medical science that offers a promising approach to treating various ailments. Hence, the present study was undertaken to (1) investigate the permissibility of employing stem cells following Islamic law, (2) ascertain the compatibility of stem cell utilisation with Islamic teachings, and (3) identify any limitations on its application. This research study is conducted using secondary library-based sources. It seeks to provide an overview of the ethical and legal considerations surrounding using stem cells as a biological treatment, specifically from the perspectives of chosen countries within ASEAN. The result shows that it is permissible to use stem cells as a treatment under strict conditions that serve to benefit mankind and that utilising them will not cause harm or invoke harm to the person or another person. It also aligns with Maqasid Shari’ah, which protects life and health and applies to several Qawa’id Fiqhiyyah (Legal Maxims). However, many challenges need to be considered regarding stem cell therapy, including ethical concerns. Therefore, several recommendations have been suggested to overcome the unethical issues of using stem cells for biomedical purposes.

The Norm of Rate Fixing of Islamic Banks Based on Conventional Bank Rates: Evidence from Indonesia

Interest rate fixing is a monetary tool used to control the money supply and hence inflation by the central bank. However, it cannot be applied to Islamic banks due to the prohibition of interest in Islam. This paper examines whether the central bank may implement rate fixing for Islamic banks, given that interest is forbidden, and the fixing of prices by the government is also generally prohibited, according to Hadith and the consensus of Islamic jurists. A documentation study was conducted to comprehend the viewpoints of classical and contemporary Islamic jurists and the National Shariah Board−Indonesian Ulama Council's fatwa. The analysis used Islamic law methodology (uşūl fiqh), which included combining the opinions of classical and contemporary Islamic jurists through the al-jam’u and the legal maxim approach, "al-‘ādah muhakkamah" approach to the custom practiced by Islamic banks, and the maqāşid approach. The research findings illustrate that Islamic banks have been using rates to calculate profits as the National Shariah Board−Indonesian Ulama Council accepts the notion of the time value of money, provided it is not utilized in loan transactions. This condition could enable the central bank to set the rates for Islamic banks, which is an effective tool for controlling the money supply and achieving economic stability, thus contributing to the realization of community welfare (maslahah 'ammah).

Political Judgment, Fiqh al-Wāqiʿ , and the Egyptian ʿUlamāʾ's : Response to the Arab Spring (2011–2013)

Abstract: Most academic accounts of the Arab Spring (ca. 2011–2013) politics of the 'ulamā' (Muslim religious scholars) explain their political stances in terms of the political ideals purportedly held by individual scholars. This article challenges this scholarly consensus through a detailed examination of the Arab Spring politics of three influential Egyptian 'ulamā' . Specifically, it demonstrates that Yusuf al-Qaraḍāwī (1926–2022), Aḥmad al-Ṭayyib (b. 1946), and 'Alī Gomaa's (b. 1952) political stances do not consistently follow any single political ideal attributed to them. Contrary to the literature, I show that al-Qaraḍāwī and al-Ṭayyib, despite their disagreements on the political situation in Egypt, took similar stances on all uprisings after the Egyptian uprising, including support for the Syrian, Libyan, and Yemeni uprisings, and their opposition to similar developments in Bahrain. I argue that their divergence regarding Egypt and their supposed inconsistency on Bahrain is primarily a result of their assessments of contemporaneous political situations and their contingent moral dilemmas. These two cases highlight an important aspect of the Islamic legal tradition that is influential in political moral deliberation: the legal maxims on balancing harms and benefits. To apply these legal maxims in concrete situations, contemporary 'ulamā' often rely on the concept of fiqh al-wāqiʿ (Islamic jurisprudence of reality), according to which contextual sociopolitical knowledge is considered as important as textual religious knowledge. Fiqh al-wāqiʿ however remains critically underdetermined, and, as this article argues, offers meager methodological tools for empirical understanding.

An Ethico-Legal Analysis of Artificial Womb Technology and Extracorporeal Gestation Based on Islamic Legal Maxims

Artificial womb technology for extracorporeal gestation of human offspring (ectogenesis or ectogestation) has profound ethical, sociological and religious implications for Muslim communities. In this article we examine the usage of the technology through the lens of Islamic ethico-legal frameworks specifically the legal maxims (al-Qawaid al-Fiqhiyyah) and higher objectives of Islamic law (Maqaṣid al-Shariah). Our analysis suggests that its application may be contingently permissible (halal) in situations of dire need such as sustaining life and development of extremely premature newborns, for advancing fetal medicine and avoiding maternal co-morbidities during fetal treatment, and for enabling motherhood for women without functional wombs, or who face grave medical risks in pregnancy. However, its application may be proscribed (haram) for enabling healthy women to avoid pregnancy and childbirth, or to achieve parenthood equity. Specification of these views to particular policy, legal contexts and Fatwa will require multidisciplinary Shariah-based bioethical deliberations between jurists, policymakers, and scientists.

Forex In The Eyes Of Shariah: A Qualitative Analysis In The Malaysian Context

The purpose of this study is to expound the fundamentals leading to the verdict about the permissibility of foreign exchange trading or simply forex. The jurisdiction will cover Quranic verses, Hadith and Islamic legal maxims or commonly known as qawaid fiqhiyyah. The contemporary views of the ulema were also discussed as the scope would later be focused in a Malaysian context. The primary data from a questionnaire to 100 Malaysian respondents would be presented. The findings show that most of the Malaysian respondents were aware of Forex trading but they had never attempted. This was due to their state of not well informed about Forex due to skepticism and extreme doubt. They also felt more secure not involved with this trading and this related strongly to their prejudice. Therefore, implications were covered in three spheres of influence: economic, social and national perspectives. Finally, recommendations for respective parties such as governments, auctioning bodies and general public would be mentioned as well in order to address the public incognizance about Forex from Sharia perspective. The research concluded that riba (usury) will never be accepted in any circumstances, and if Forex insists on incorporating this despised element, then this financial transaction might stay haram (forbidden) indefinitely, unless otherwise abiding the Islamic apparatus and guidelines.

Islamic Securities Crowdfunding Based on Indonesia's Islamic and Positive Law Perspective

This paper analyzes Islamic Securities Crowdfunding (SCF) based on Indonesia's Islamic and positive law perspectives. This paper is a descriptive qualitative by using a normative juridical approach that observes the governing or binding law in society with the convergence on Islamic law and regulations of the Indonesian Financial Services Authority (OJK). The findings reveal that the practice of Islamic SCF is allowed by referring to the Qur'an, Hadith, legal maxim, maqasid al-shariah, and syirkah musahamah contract in DSN-MUI Fatwa No.140/DSN-MUI/VIII/2021 issued on August 24, 2021. Furthermore, from the positive law's perspective, Islamic SCF is allowed to operate by referring to POJK No.57/POJK.04/2020, which accommodates to four principal regulations, namely, organizers, crowdfunding services, issuers, and financiers

Sense and Sententiae

This essay aims to rethink a rhetorical microgenre: the “sentence” or sententia, a brief maxim usually stating a moral principle. My aim is to show that rhetorical sentences entail more flexible cognitive and interpretive acts than has usually been recognized. I read the theory and practice of the sentence alongside that of legal maxims, arguing that these small forms can cast a useful light on each other. I focus in particular on literary characters who misuse sentences in ways that prompt inferences about them that go beyond anything they either could or would say themselves. The act of sentence-making entails a judgment that balances the content of the statement against the context in which it is made; that judgment has analogues in law, in both equitable interpretation and the theory of fictions; in literature, that legal hermeneutics is put to work for the construction of character, conscripting what cognitive science calls “mentalizing” for the projection of a kind of inwardness fashioned out of the materials of common opinion. The essay ends by arguing that connecting rhetorical sentences to legal maxims allows us to think seriously about the relationship between legal and literary fiction as it shapes Shakespeare’s Hamlet.

Intellectual Attitudes Toward Islam Nusantara and Their Religious Ideas

Secondary literature examines the legitimacy of Islam Nusantara, taking into account Islamic legal maxims and institutional rejection, often stemming from religious reasons. This research aims to comprehend participants’ attitudes towards Islam Nusantara (IN) and their religious justifications, including their understanding of religious authority and the application of Islamic Law. This is crucial for elucidating the primary factors behind varying IN attitudes, whether driven by religious considerations or other factors. We argue that religious differences are not the primary determinants of IN attitudes, as evidenced by participants’ discussions regarding religious authority and the application of Islamic Law. While a minority of conservative participants endorse the formalization of Sharia based on textual religious authority, the majority, including some who express reservations about IN, perceive Sharia as a set of values. They advocate for contextual interpretations that align with IN’s values but stop short of full endorsement. In a broader context, this study uncovers the intricate interplay between religious ideas and socio-political attitudes within diverse Muslim groups. It enhances our understanding of the dynamic relationship between religion, society, and diverse interpretations.

Conservatism on Islamic Legal Maxims: Judicial Interpretation of Polygamous Marriage at the Religious Courts of Mojokerto, Indonesia

This article explores religious judges’ interpretations of Islamic legal maxims through a content analysis of 30 verdicts that granted permission for husbands’ polygamous marriages issued by the Religious Court of Mojokerto in Indonesia from 2020 to 2022. Despite governmental efforts to restrict polygamous marriage practices due to potential negative consequences, religious judges often grant permission to husbands, considering a balance between maṣlaḥah (public good) and mafsadah (harm). Employing a normative-philosophical approach, this article identifies two recurring Islamic legal maxims consistently applied by judges: “dar’u al-mafāsid muqaddamun ‘alā jalb al-maṣāliḥ” and “idhā taʼārada mafṣadaṭānī rūʼiya aʼẓamuhumā ḍararan bi al-’irtikābi akhaffihimā.” However, their legal interpretations regarding maṣlaḥah and mafsadah reinforce the husband’s interest in the case of polygamous marriage. Thus, the authors argue that the interpretations of these legal maxims in practice reflect a conservative perspective that strengthens patriarchal hierarchies. These findings highlight that Islamic legal maxims as legal principles within Islam have not yet effectively functioned as an instrument of protection for vulnerable groups, especially women and children.

Legal Maxims in Islamic Law: Concept, History and Application of Axioms of Juristic Accumulation, written by Necmettin Kızılkaya

Legal Maxims in Islamic Law: Concept, History and Application of Axioms of Juristic Accumulation, written by Necmettin Kızılkaya

The Principle of Considering the Consequences of Actions in the Sharīʽah Standard for Tawarruq Issued by the AAOIFI

The research paper aims to study the principle of considering the consequences of actions in the Sharīʽah standard for tawarruq issued by the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI). The problem of the paper lies in the extent to which the standard of tawarruq considers the consequences of actions in establishing the legal rulings mentioned in it, and how consistent they are with the consideration of consequences in its rules, regulations, areas, and mechanisms as established by jurists. It is known that the permissibility of various aspects of tawarruq is still a subject of disagreement among scholars, at institutional and individual levels. This study employs inductive and analytical methods as it finds out first the issues and rulings related to the standard of tawarruq which are based on consideration of consequences, then it analyses and evaluates them according to legal maxims on which they are established like sadd al-dharīʽah and ḥiyal and similar maxims which are related to ijtihād. The researchers will also explain and elaborate on rulings of the issues which are based on the principle of consideration of consequences of actions, analyzing and evaluating the ways in which it is used to formulate rulings on issues related to tawarruq. This research is significant as it will help financial institutions on one side, and will contribute on the other side in evaluating, improving, and renewing Islamic financial products by relooking at it at the research level. The researchers found that the standard of tawarruq has been complied with the principle of consideration of consequences and its regulations and maxims in inferring Sharīʽah rulings from it, and that is through formulating regulations and conditions which work to prevent all the means of circumvention and similar forms which are surrounded by doubt of ribā (interest). This proves the importance of this principle in the applied ijtihād and what is related to possibilities and cautions in finance. It seems that actualization of this principle in contemporary Islamic finance is demanded more than any other principle as it is related to financial rights of people.