Rules Of Islamic Law Research Articles

Qiyâs dan Istihsân dalam Rasionalitas Usûl al-Sarakhsî

<p>There are two conceptual terms that this paper will try to expose. The first is analogy (<em>qiyâs</em>) and the second is <em>istihsân</em>, an analogy—like method of extrapolating jurisprudential rules. The paper will try to speak of their relationship in the light of al-Sarakhsî’s rationality. In the field of Islamic jurisprudence, the two concepts are often seen as contradicting to one another. The Shafi’ite jurists are even of belief that using <em>istihsân </em>is legally forbidden for that would contradict the general rules of Islamic law. The paper assumes that despite general view of the jurists that <em>istihsân </em>is an equivocal method it can nonetheless be fitted into <em>qiyâs. </em>To show that however, the paper would inevitably re-define both <em>qiyâs </em>and <em>istihsân </em>as proposed by al-Sarakhsî. By exploiting the ideas of al-Sarakhsî, the paper hopes that new lights may be shed as far as the richness of Islamic method in</p>jurisprudence is concerned.

Islamic bonds (sukuk) as a source of finance

This paper wants to analyse the mode of operation of so-called 'Islamic Bonds', known by its Arabic name 'sukuk'. Since interest is prohibited in Islam, other securities have been developed that want, on the one hand, to avoid interest, and on the other hand, to provide an income without excessive risk to investors. In practice, Islamic debt contracts are used for securitisation in most cases. The question here is to what extent these securities are of interest to investors and to what extent they really follow the rules of Islamic law, which we want to analyse by the theoretical presentation of these bonds and practical examples of the issuance of Islamic bonds.

Soft law, self-regulation and cultural sensitivity: The case of regulating Islamic banking in the UK

The Islamic banking sector has grown significantly over the last three decades and reached many international financial markets. As their name suggests Islamic banks are governed by the rules of Islamic law (Sharia). The Sharia compliance requirement has its implication on the nature of Islamic banks’ operations. The prohibition of interest prevents Islamic banks from using conventional financial products. Instead, Islamic financial products are based on the principle of profit-loss sharing. Therefore, the Islamic feature of these banks has brought certain regulatory challenges. This article is concerned with the UK Islamic retail banking market and it focuses on the role of soft law and self-regulation in minimising these regulatory challenges.

IBN RUSYD DAN METODE IJTIHÂD-NYA DALAM KITAB BIDÂYAT AL-MUJTAHID

Abstract: Ushûl fiqh has a significant role in Islamic science, since Islamic lawpartly regulates the essential problems not the detail ones. It became nature because Islamic law rules by the end of time. However in human being live there must always be change of social design, so that it always araises new problem in society. This article is to describe the Ibnu Rusyd’s method in deciding syar’i law. His capacity as fiqih expert is undoubtful. His masterpiece, Bidâyat al-Mujtahid wa Nihâyat al-Muqtashid is a comparison of fiqh book Key Words: Ibn Rusyd, ijtihâd, dan hukum Islâm

THE LEGALITY OF A LIVING TRUST AS AN INSTRUMENT FOR ISLAMIC WEALTH MANAGEMENT: A MALAYSIAN PERSPECTIVE

At present, the use of living trust is advocated as one of the best mechanisms to be considered for Islamic wealth management in Malaysia. Whilst the purpose of creating a living trust is to benefit the beneficiary, the settlor retains complete control and enjoyment over the trust property during his lifetime, and the beneficiary will only benefit the trust property after the death of the settlor. This instrument has been legally recognised to be applicable to Muslims in Malaysia and is enforceable against the settlor or his estate, irrespective of whether or not possession of the property was given to the beneficiary during the lifetime of the settlor or whether or not the settlor enjoyed the property during his lifetime. This situation is inconsistent with the rule of Islamic law on gift (hibah) and succession, especially when the beneficiary is a person who has the legal capacity to own property and who may be one of the legal heirs of the deceased-settlor. This article seeks to examine the execution of living trust by Muslims in Malaysia so that the rights of the beneficiaries under such trust are legally ascertained according to the Islamic law.

ABORSI DALAM PERSPEKTIF HUKUM ISLAM

This paper describes the phenomenon of abortion that is currently so prevalent in society. This fact requires us to find solutions quickly and accurately, so that people do not walk toward ruin, caused by the strong influence of ideology adopted by the society of freedom blindly from the West. Islam as a religion is perfect and complete, is the main solution to problems in every line of human life, in this case remove followabortion that violates the rules of Islamic law, in addition to the consideration that Indonesia is a Muslim majority. This paper aims to find Islamic views on abortion and find the best solution according to Islam to combat the practice of abortion that are implicated in the middle of the “ummah”, which causes women to be the greatest sacrifice.

Corporate Governance Principles and Islamic Law

Corporate governance is one of the vital elements of any corporation and economic development. Globalization and cross borders investments effect many Islamic countries economies. Starting from this point; International and local Investors need to know that there is a legal frame work that will support and serve their interests. Despite its rapid growth and increasing presence on world financial markets in the Islamic world, little is written on corporate governance from Islamic perspective. Few studies have been carried out in order to come up with alternative models of corporate governance from the Islamic point view. These studies seem to suggest that Islamic corporation may adopt a totally different model of corporate governance or a modified version of the western model of corporate governance as an alternative for its corporate governance framework as well as in actual practice. Many Islamic corporations adopted the western model of corporate governance. Moreover, some would argue that there is a wide difference between the Islamic law and the modern Corporate Governance principles. Some research claims that Islamic Law has nothing to do with Corporate Governance principles, and because the Islamic law is an absolute divine law, there is a profound confrontation between Islamic law and western legal system. As well as introducing Corporate Governance Codes in Islamic countries without any reference to the Islamic rules support this idea. The proponents of the western model of corporate governance continuously attempt to defend their model and the opponents strongly criticize them especially in the aspect of shareholder value and stakeholder value, principle-agent relationship or the agency problems. In this article, I will try to find if there is any relation between the modern Corporate Governance principles and the Islamic law rules by focusing on the Corporate Governance principles in regards to shareholder value and stakeholder value with the contact of ownership issue in Islamic law. Analyzing the relation between the shareholders and the board of directors and compare it to the concept of fiduciary “Wakalah” in Islam. Finally, I will analyze the disclosure rules in modern corporate governance with the concept of “Gharar” rule in Islamic law. The main objective of this comparison is to find if there is any harmony and/ or difference in the factors between the modern Corporate Governance principles and the Islamic law rules, if there are any.

PATERNITY BETWEEN LAW AND BIOLOGY: THE RECONSTRUCTION OF THE ISLAMIC LAW OF PATERNITY IN THE WAKE OF DNA TESTING

Abstract: The discovery of DNA paternity tests has stirred a debate concerning the definition of paternity and whether the grounds for such a definition are legal or biological. According to the classical rules of Islamic law, paternity is established and negated on the basis of a valid marriage. Modern biomedical technology raises the question of whether paternity tests can be the sole basis for paternity, even independently of marriage. Although on the surface this technology seems to challenge the authority of Islamic law in this area, the paper argues that classical Islamic rulings pertaining to paternity issues continue to hold higher authority even in cases of conflict with modern technology‐based alternatives. Through closer analysis, the paper traces the emergence of a differentiation in the function of DNA tests between identity and paternity verification. While the former is accepted without reservation, the latter is approved only when it does not violate the rulings of Islamic law.

The Strategies of Muslim Family Law Reform

Family law in Muslim-majority countries has undergone tremendous change over the past century, and this process continues today with intensity and controversy. In general, this change has been considered one of “reform,” defined loosely as the adoption of national laws to modify the rules of Islamic law (fiqh) that had been applicable and predominant in the particular country in an effort to improve the rights of women and children. In most Muslim-majority contexts, however, the rules of fiqh remain particularly (and in some jurisdictions uniquely) relevant in the area of family law, and the reform process is usually presented as taking place internally to Islamic law rather than something external to it. In early reform efforts, three main strategies were used to achieve substantive results (namely the strategies of exercising preference, patching, and jurisdiction stripping). To the extent that the scholarly literature on Muslim family law deals with types of internal strategies (rather than the actual substantive changes), these three strategies are typically the main or only ones discussed. Family law reform has been very active in recent years, however, and some advocates have developed creative and innovative ways to continue to push legal change that is presented as coming from within the Islamic legal tradition. This article, drawing mainly on examples from Egypt and Morocco, seeks to identify and examine the breadth of strategies in Sunni Islam that have been used beyond these well-known three. By naming and defining them, we hope to facilitate discussions and research in this area, among academics and those engaged in reform projects alike. Specifically we aim to encourage empirical studies of the practical impact of reforms; draw attention to the potential unintended consequences produced by each type of strategy; and contribute to a larger conversation about the benefits and disadvantages of internal approaches, on a case by case basis and as a whole, in comparison with other ways that might be used to achieve legal improvements for women and children.

Human Rights of Women and Children under the Islamic Law of Personal Status and Its Application in Saudi Arabia

Saudi Arabia has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). However, it has made general reservations to the effect that where there is a conflict between a Convention article and Islamic Law principles, Islamic Law shall have precedence. The family law rights of women and children in the Kingdom of Saudi Arabia have been criticised for not reaching the standards set by CEDAW and CRC. This article looks at the internationally set standards of these rights and compares them with the Family Law rules of Islamic Law as applied in Saudi Arabia. The applications in Saudi Arabia are then examined by looking at certain practices, case judgments and recent developments in the country in this field. Amongst these developments are the first case in which a Saudi judge annuls a child's marriage, the first death sentence declared on a father who abused his daughter causing her death, and the Saudi Divorce Initiative which aims to educate women and call for the protection of their rights during marriage and after its dissolution. The article stresses that despite the many improvements, there remains a need for codifying the Islamic Law of Personal Status in Saudi Arabia as this measure would be the basis that defines and protects the rights of women and children in Family Law.

Turkey and the Middle East: frontiers of the new geographic imagination

Click to increase image sizeClick to decrease image size Notes 1. In February 1997, Ankara had accused Iranian Ambassador Mohammad Reza Baqeri of interfering in Turkey's internal affairs by voicing support for the rule of Islamic law at an Islamists’ rally in the Ankara district of Sincan. The incident caused a diplomatic crisis that lasted for six months until the two parties agreed to exchange ambassadors again. 2. On February 28, 1997, the National Security Council took some decisions to ‘reinforce the secular character of the Turkish state’, which is known as the soft or post-modern coup. The coalition government had to step down in July 1997 after threats of military intervention. 3. See <http://news.bbc.co.uk/1/hi/world/europe/1911609.stm>. 4. See <http://rferl.org/featuresarticle/2004/06/2dcae3ab-d364-452a-85f5-428c2f757fa9.html?napage=3>. 5. See <http://english.aljazeera.net/NR/exeres/8395C7CE-AEAC-4CF9-8319-B7F5C6AD0DCF.htm>. 6. See <http://www.radikal.com.tr/haber.php?haberno=191398>. 7. See <http://www.tepav.org.tr/engyeni/admin/dosyabul/upload/Joint_Declaration.pdf>. 8. For more information see <www.tobb.org.tr/haber_arsiv2.php?haberid=1170>. 9. See <http://www.rferl.org/featuresarticle/2007/07/4875c449-63c9-4724-b9b9-6aad1caf4bef.html>. Additional informationNotes on contributorsBulent ArasBulent Aras is professor of international relations at Isik University. He is author of Greater Middle East and Turkey (2004), New Geopolitics of Eurasia and Turkey (2002). He published extensively on Turkish foreign policy, Middle Eastern politics and Central Asian and CaucasusRabia Karakaya PolatRabia Karakaya Polat works at the department of International Relations at Isik University in Istanbul, Turkey

How far have reforms gone in islam?

The encounter of East and West has initiated a period of reforms in Muslim societies. Some of the legal reforms enacted by premodern and modern Muslim states have been hailed as victories for women's rights in Islam. A historical and comparative perspective on the issue reveals that this is far from being true. Reforms constitute a far more complex issue. In many Muslim countries, Islamic law remained the main reference in matters pertaining to family and personal laws. To this day, women's rights remain a sensitive issue. A look at some modern Muslim legislations regarding divorce and polygamy illustrates both the tension that exists between the duties of modern states to uphold women's rights and their alleged Islamic principles and the tension that exists between state and religion. Paradoxically, recent developments in Iran illustrate aptly that some sort of reforms of family laws may be envisioned within the strictures of an Islamic society where Islamic law rules.

Reasoning in Islamic Law: Part One

AbstractNo Abstract

Legislating Social Change in an Islamic Society-Indonesia's Marriage Law

In 1974 Indonesia, the world's most populace Islamic country, passed a National Marriage Act,1 the first legislative revision of the country's marriage and divorce law. Prior to the passage of the law, the marriage and divorce of Indonesia's majority Muslim population was governed exclusively by the unamended rules of Islamic law. Although a statute passed in 1946 required registration of marriages, reconciliations, and divorces, prior to 1974 there had been no legislative interference with the substance of Islamic marriage rules. Among the government's purposes in proposing marriage legislation were limiting arbitrary divorce and polygamy and eliminating or reducing child marriage.2 To accomplish those objectives the Act restricted a Muslim husband's power unilaterally to repudiate his wife or to take a second wife by requiring judicial approval and statutory grounds for both divorce and polygamy. The Act also required that marriage be based on the consent of the parties, that persons marrying under the age of 21 have parental consent to marry, and imposed a minimum marriage age of 16 for girls and 19 for boys.

Islamisation and Modernisation Within the Uae Penal Law: Shari'a in the Pre-Modern Period

The criminal law of the United Arab Emirates (UAE) derives from two primary sources: Islamic law (Shari'a) and modern criminal law based on the provisions of the Federal Penal Code. This series of articles will examine the relationship between these two sources and the conflicts and problems arising from this relationship. In the UAE as in other Muslim countries, Shan'a was the traditional source of detailed legal rules for over a millennium. The binding authority of Shari'a is not conferred by the state, rather it is rooted in the Muslim belief that Sharifa is divinely ordaimed. The Qur'an (considered by Muslims to be the very word of God Himself), and the Sunnah (which details the Prophet Muhammad's interpretations and applications of the Qur'an), constitute ffie basic sources for Shari'a. From these two sources, Muslim jurists derived the detailed legal rules of Islamic law. According to traditional Shari'a legal theory, the deviation of such legal rules is entrusted solely to the jurists. It follows that the formulation of Shari'a detailed law is neither the prerogative of the Muslim state nor the right of Muslim courts. Islamic legal theory states that the right of law-creation is exclusively possessed by God and is not a prerogative of the state, as modern political and legal theories claim. Man thus has no right to create law; his role is esseniially corimed to formulating and discovering God's law as it is contained within Shari'a textual sources (i.e. the Qur'an and the Sunnah). The Federal Penal Code (1987) of the UAE, however, is the result of federal government legislation and as such is both modem (i.e. non-tradiiional) as well as secular. Most of the Code's provisions either originate from or are influenced by Western criminal laws. The Code's inherent contradictions created problems for the Emirates' legal system. The Penal Code attaches equal significance to de . . . @