Schools Of Islamic Jurisprudence Research Articles

Judgment of consensus denial in fundamentalists (An Applied Fundamental Study)

Judgment of consensus denial is a critical fundamentalist research. " Who denied the consensus is nonbeliever" is a phrase widespread between scholars and jurists where is the one who agreed, others were opposed, others elaborated on it, and there were who hesitated and worried. For that concern, this research paper studies the judgment of consensus denial to obtain a result. The research paper presents a brief introduction, outlining the meaning of the consensus, its authenticity, and whether it was indicative or subjunctive connotation. In addition, it presents the elements of consensus, conditions, sections, and types. The paper displays the judgment of consensus denial whether the denial is based on its authenticity or judgment and whether that consensus is indicative or subjunctive. It displays the sayings of the fundamentalists of the four religious’ schools of Islamic jurisprudence in this, as well as with the examples thereof. The research concluded that consensus is either indicative or subjunctive. The subjunctive consensus, there is hardly one who rejected its denier. As for indicative consensus was vary, there was a consensus that it is a necessity, and those who denied the consensus are nonbelievers for most of the fundamentalists for its consecutiveness. Most of the disagreement is focused on this type. The opinion of a group of fundamentalists, such as al-Amidi, Ibn al-Hajib, Al-Juwayni, and others.

16. A Comparative and Scholarly Analysis of Four Schools of Islamic Jurisprudence about the Islamic Law of Khula

System of Khula in IslamiShariah is an essential part of family laws. It provides permission to a married couple for the cessation of wedlock with peace so that their mutual disagreements could not make the life oppressive for one of the partner. Islam is a religion of peace and bars high - handedness. No doubt system of Khula in Islamishariah is a great boon. Islam not only confers upon husband as a head of family the authority of unilateral decision of separation in the form of divorce but also posits law of Khula for separation. All the schools of fiqh have presented detailed interpretation and exposition of the rules and regulations of the system of Khula.

A Comparative and Scholarly Analysis of Four Schools of Islamic Jurisprudence about the Islamic Law of Khula

System of Khula in IslamiShariah is an essential part of family laws. It provides permission to a married couple for the cessation of wedlock with peace so that their mutual disagreements could not make the life oppressive for one of the partner. Islam is a religion of peace and bars high - handedness. No doubt system of Khula in Islamishariah is a great boon. Islam not only confers upon husband as a head of family the authority of unilateral decision of separation in the form of divorce but also posits law of Khula for separation. All the schools of fiqh have presented detailed interpretation and exposition of the rules and regulations of the system of Khula.

The Importance of Conformity Between Various Schools of Islamic Jurisprudence in Contemporary Era (In the Light of Jurisprudential Conflicts)

Ijtihad is a unique feature of Islam which testifies to the adaptive nature of Islam. Imam Abdul Wahab Sha’rani and Shah Wali Ullah are iconic personalities, who have contributed immensely for the reformation of Islam. In this write up, arguments of Imam Sha’rani and Shah Wali Ullah have been discussed and compared to create jurisprudential conformity which is crucial to create unanimity in Muslim societies, to solve present sectarian issues, development of mutual respect and eradication of narrow-mindedness and intolerance. There should be guiding principles for establishing conformity among the jurisprudential schools of thought there should be effort for making a collective Jurisprudence.

Kalām in the crossfire: A historical survey of the legitimacy of the study of theology within the Sunni school of Islam

The aim of this article is to briefly introduce and to examine the views of the founders of the four Sunni schools of Islamic jurisprudence (namely, Abū Hanīfa Nuʻmān ibn Thābit, Mālik ibn Anas, Muhammad ibn Idrīs al-Shāfʻī, and Ahmad ibn Hanbal) and that of their renowned students and followers, regarding the legitimacy of engaging in the study of Islamic doctrinal beliefs or Kalām. Different, and often conflicting, views have been postulated on this matter. Some Sunni thinkers have condemned the pursuit of theology as an act of heresy and denounced its practitioners as apostates. Other Sunni thinkers have extolled this discipline as the noblest of sciences whose learning and teaching are, at least under certain circumstances, incumbent. This fundamental dispute regarding the legitimacy of the discipline of theology has resulted in a rather contentious and opaque scholarly environment. In addition to the inherent importance of the discipline of theology as such, the significance of this dispute is compounded by the impact that the attitude one adopts toward this discipline can have on the development of the intellectual and rational aspects of Islam. A negative attitude toward theology, for example, can hamper the application of rational elements to Islamic doctrine. Our focus in this article is on analysing the views of the leading thinkers and jurists of the Sunni school and investigating the most authoritative sources of doctrinal tradition within this major denomination of Islam. Our study leads us to conclude that the disapproving views of the preeminent Sunni figures should be construed, not as a denunciation of the discipline of theology per se, but as a refutation of certain theological principles and persuasions that are viewed as incompatible with orthodox Islamic faith. In addition to and preceding that conclusion, this article provides a survey of the literature concerning the views of Muslim scholars on the legitimacy of Kalām. After categorising these views into the two opposite camps of Kalam’s legitimacy and illegitimacy, the article then proceeds to evaluate and critically analyse them, and to resolve some of their initial incompatibilities.Contribution: The article sheds new light on the historical development of the discipline of theology within the Sunni schools of Islam. This is a little-studied and often overlooked subject that can help in attaining a better understanding of how this critical field within religious studies has emerged into its present form.

Talak Taklik Menurut Fiqah: Analisis Pelaksanaannya dalam Undang-Undang Keluarga Islam serta Arahan Amalan Jabatan Kehakiman Syariah Malaysia

This article studies the hidden wisdom behind the pronouncement of conditional divorce, the rules and conditions prescribed by the jurists, as well as the forms and types of ta’līq in shariah law. This article also seeks to look at the practice of ta’līq in Malaysia as well as provisions under Islamic family law in Malaysia, as well as the practice direction issued by the Department of Syariah Judiciary Malaysia. The study employed library research to expound the opinions of earlier jurists from various schools of Islamic jurisprudence, and textual studies on the provisions of law related to the issue concerned. The study found that the wording of the official pronouncements of ta’līq varies from state to state, hence the consequences can also differ. The researcher is of the view that the practice of pronouncing ta’līq after the solemnization of a marriage contract should be reviewed. It needs to be said that the validation of a divorce by ta’līq is a more complicated process than an ordinary divorce.

A Scientific and comparative study of Four Schools of thoughts Regarding the Definition, Interpretation and Applied Forms of Nikāh.

Nikah is a sacrosanct social contract in Islamic Sharia that brings a man and a woman into formal and lawful relationship as husband and wife and creates the institution of family to serve a number of objectives of Sharia. In view of its centrality in Islamic social life, it has attracted significant scholarly debate among scholars of the four schools of Islamic jurisprudence. However, it is not easy for ordinary readers to grasp in the finer conceptual aspects that attend the concept of Nikah, more so in view of the enormity of the scholarly works on the subject penned down by scholars of the different schools of Muslim jurisprudence. Based on the analysis of the views and explanations of some leading men of letters of various schools, this article attempts to frame a kaleidoscopic picture of the concept of Nikah in Islam, its literal meaning, and the various tricky points related to Nikah. In doing so, it compares and analyses the juridical opinions of the jurists of the four schools. As a qualitative research, it is primarily textual and critical analysis of the written and published works of the scholars on the issues being examined. It entails hermeneutics, thematic analysis and synthesis of various views in order to derive and clarify key themes and issues related to the concept of Nikah.

بالغ کے نکاح میں ولایت کا کردار:فقہی مذاہب اور موجودہ قوانین کا تقابلی جائزہ

it is a research paper about the study of guardian’s role in the marriage of adult person and especially of an adult woman. There are different opinions of the Islamic Jurists in this issue and the implemented laws of Pakistan lead to other dimension to some extent in many issues of the topic in discussion. Four major schools of Islamic jurisprudence have inter schools as well intra school differences in the guardian’s role in the marriage of an adult women, whether she can marry without the consent and permission of the guardian or not? Malkies, Shafies and Hanbalies are united on the opinion of compulsion of the guardian’s permission for the valid marriage of the adult Muslim women but Imam Abu Hanifa allows it with the condition of equal status of the husband and if she violates this condition then the guardian may file a case in court for the cancellation of such marriage and some jurists say that such marriage is permissible but will not be final without the consent of guardian. Apart from the opinions of Islamic jurists prevailing laws of Pakistan are creating vast space for such couples, which are being proved the major cause of the violation Islamic laws. All these points have been discussed in detail in this research paper.

Debt Theories in Islamic Commercial Transactions and Their Implications for the Islamic Capital Market

There are two different approaches to the prophetic concern regarding debt acquisition and the related rulings. The Prophet (peace be upon him) was recorded as having discouraged debt while other verbal traditions provided guidelines on how to manage debt in a socially responsible manner. This paper aims to analyse these two contrary views according to the Maqasid Shariah and look at how this has impacted juristic rulings. Furthermore, the paper reviews classical fiqh theories on debt, sale of debt, al-Muqassah, Suftajah, Hawalah, and Ibra. The paper also reviews the theoretical perspective on the sale of debt according to the understanding of Islamic scholars across the schools of Islamic Jurisprudence which has a substantial impact on the contemporary practices in Islamic banking and the Islamic capital market.

اصولِ استحسان: ائمہ اربعہ کی آراء کا تجزیاتی مطالعہ

In case of solving the issues based upon the human necessities and expedients with reference to clear analogy or common rules, when such type of results appear which do not correspond with the universally accepted purposes of Sharia‘h due to the variety of occasions, consecutive  new necessities and change of language and place so in this condition, leaving the common rules, the way which is adopted in the light of the Sharia‘h arguments to act upon these purposes, is called Istiḥsān (juristic preference).That in this way, under the purpose of Sharia‘h new order is declared Ḥasan or Mustaḥsan. So that the welfare may increase and Injuriousness may be thrown away. So that this command may become harmonious to divine wisdom. In this way, to search the purposes of Sharia‘h on the basis of the Sharia‘h arguments (The Holy Qur’ ān, Sunnah, Ijmā‘, Qiyās, Necessity, Expedient and Ūrf) is called Istiḥsān instead of following apparent words and shapes of the sources of Sharia‘h(The Holy Qur’ān, Sunnah, Ijmā‘, Qiyās). Istiḥsān searches the way to stabilize the justice in news circumstances and it encourages the flexibility and justice in law and judicial process. It finishes the gap between the law and social realities. Moreover it carries the mention worthy capability regarding the reformation and renewal of the law. There are seven types and some principles of Istiḥsān, which guide us towards the extraction of commands through Istiḥsān. Istiḥsān can only work when it is according to the principles stated by the scholars. The study is an effort to throw light on Istiḥsān, and its usage in different schools of Islamic Jurisprudence.

The Impact of Slight Fraud on the Contract: An Analytical Study of Article 189 of the UAE Civil Code

Abstract The United Arab Emirates (UAE) legislator has regulated gross fraud in the Civil Code, which derives its provisions from the Hanafi school of Islamic jurisprudence. A penalty was adapted so that when gross fraud has an impact on a contract, the defrauded contracting party can terminate the contract in question. The legislation also regulates slight fraud, but only in two very specific cases. This article aims at determining the accuracy of Article 189 that regulates slight fraud, and then identifies its shortcomings by analysing the cases in which slight fraud affects a contract. It concludes that this text is inaccurate, and suggests the UAE legislator amend Article 189. In addition, we suggest a new definition of terminal illness.

Abortion as a Contested Right in Occupied Palestine

Abortion as a Contested Right in Occupied Palestine

Authorized Interpreters of Islamic Law The Shhha View

The question of who is authorized to interpret Islamic law is a difficult one due to the plurality of different schools of Islamic jurisprudence, each of which allocates the authority very differently. Yet, any dialogue in matters of Islamic law requires the correct interlocutors to be identified. This topic is as under-researched in Western legal and security-policy studies as it is important. This study attempts to identify the correct interlocutors in legal matters under Twelver Shīʽism, which is the state religion in Iran. In terms of its legal history, such authority has developed into a hierarchical, yet pluralistic system of legal authority since the end of the 18th century, with the victory of the so-called Ușūlī school of jurisprudence and the emergence of grand jurists (marājiʽ-i taqlīd). The process of designating absolute authority continues informally, but a key prerogative is superior knowledge of Islamic law and religion. Such grand jurists have, at times, exercised great influence over the ruling Shāhs. Other times, they have preferred to remain teachers in religious schools. An important change took place with the 1979 Islamic Revolution, through which the guardianship of the jurist (vilāyat-i faqīh) was crystallized in the Iranian constitution. Since then, grand jurists have had to accommodate another religious and political authority, the guardian jurist or supreme leader (valī-yi faqīh). To date, the division of authority between the guardian jurist and grand jurists remains unresolved. The future will depend on the strength of the requirements developed by the Ușūlī school regarding superiority in learning for any attribution of authority.

Duress and Its Impact on Contracts in the uae Law on Civil Transactions: Analytical Study in the Light of Islamic Jurisprudence

This research addresses and analyses ‘duress’ and its impact on contracts, being one of the defects in consent, as regulated by the uae legislators in the Law on Civil Transactions. uae legislators have gleaned duress-related provisions from Islamic jurisprudence, as per its approach to regulation of the provisions of civil transactions. Therefore, this research needs to be referred to the different Schools of Islamic jurisprudence, these being the source of the uae Law on Civil Transactions. The research concluded that there is consensus among scholars of Islamic jurisprudence, as to the fact that duress affects a contract; however, these scholars hold differing views as to the extent of such impact. The research further concluded that the uae legislators have derived the legal regulation of duress from the Ḥanafī and Mālikī Schools of Islamic Sharīʿah—though there are some differences between these Schools—and the research arrives at additional conclusions and makes some recommendations.

Sharia compliance in the construction industry: Is this something to build upon?

Sharia principles imply a mode of organising society and its various facets, as well as serving as a guide for the conduct of individuals within the institutional and social context. Accountability to be one of the pillars of environmental ethics within Islam. Another of the most important Islamic concepts is the solidarity of Islamic generations. Thus, the broader environmental dimension related to building is a social concern. Building standards need to take into account this concern for preserving sustainability for future societies. Sharia compliant projects should be permissible business. Prophet Muhammad’s (P.B.U.H.) Hadith hallmarks the significance of adhering to Islamic legislation and highlights Halal and permissible business. Therein permissible/Halal business derives its elaboration from Islamic legislation. Sharia principles are often articulated in broad terms. This has created a license to use discretion on how to apply these principles. Owing to the fact there are different schools of Islamic jurisprudence, interpretation of dicta are not always co-terminus. This paper looks into the various components particular to the discussion on Sharia compliant logistics. In order to discuss the hypothetical facets involved in the depiction of Sharia compliant logistics for construction, the discussion is broken down to address the values associated with Sharia compliant business and therefore the implications of Sharia compliant construction logistics leads on from there.

LEGAL RELATIONSHIP BETWEEN ILLEGITIMATE CHILDREN AND THEIR BIOLOGICAL FATHER: The Analysis of Constitutional Court Decree No. 46/PUU-VIII/2010 in the Perspective of Civil and Islamic Law

In Indonesia, children born out of wedlock only have legal relationship or family lineage relationship with their mother and mother's family, not with their biological father and biological father's family. This provisions of law are arranged in Article 43 paragraph (1) of Marriage Law No. 1 of 1974 which is highly influenced by Shafi'ite School of Islamic jurisprudence. Through judicial review of Aisyah (Machica) Mochtar and her son named M. Iqbal Ramadhan, Constitutional Court has agreed to waive the provisions by means of the Decree Number 46/PUU-VIII/2010 with legal consideration that the concerned article contravenes the Constitution, then it creates new legal norm which states those children have legal relationship and family lineage with their mother and mother's family and also the man who is their father. The Decree sparks controversies concerning the term ‘children born out of wedlock' and ‘legal relationship' in the decree. Contrary to many law experts, the article argues that the term ‘children born out of wedlock' simply means children born from zina (adultery or fornication). Thus, ‘legal relationship' only refer to limited relationship between both parties.

IN THE NAME OF A LAW: ISLAMIC LEGAL MODERNISM AND THE MAKING OF AFGHANISTAN'S 1923 CONSTITUTION

AbstractIn 1919, a new amir in Afghanistan named Aman Allah Khan launched an ambitious campaign to reorder his government into a constitutional monarchy. By 1923, Afghanistan had ratified its first constitution, supplemented by scores of legal and administrative codes. Whereas the latter have long been attributed to European borrowings or Kemalist imitation, this article uncovers two neglected features of Aman Allah's reformist project to argue that the making of Afghanistan's 1923 Constitution presents a distinctive path of state building in the region: Islamic legal modernism. First, by upholding the Hanafi school of Islamic jurisprudence as the basis of Afghan substantive law, Amir Aman Allah sought a cohesive national judiciary through the codification offiqh, not European civil law. Second, by synthesizing the expertise of a diverse cast of Muslim scholars and professionals—from Afghan clerics to Ottoman and Indian technocrats recruited to Kabul—he attempted to avert a rift between “Islamic” and “secular” lawmaking.

Problem of Domestic Violence and Its Solutions in the Light of Maqasid Shariah

The spread of family problems in the contemporary period leads to divorce and family disengagement in society; the study revolves around the emergence of social problems resulting from wife’s work outside home which makes her neglects her certain rights and obligations. Moreover, cases of domestic violence have increased such as beating and verbal abuse in all its forms. Accordingly, the study lies in building a happy family which is the first nucleus of society whose integrity and corners must be protected, and also highlights the role of maqasid shariah in solving problems of modern family; thus, the study aims at highlighting the rights and obligations between spouses in accordance with Islamic law, and to identify the reasons and motivations that lead to the existence of these problems and how to solve them from the maqasid shariah perspective. The study adopted the inductive and analytical approach and looked into schools of Islamic jurisprudence, and discussed the views of the jurists through explaining their authorities in the issue, and discussed the points of agreement and disagreement, and then analyzed the texts and issues in the light of maqasid shariah. The result shows that the main reason for having family problems is the lack of knowledge of the spouses with rights and obligations and abiding by them. And that wife’s work is permitted within limits and restrictions that are not contrary to maqasid shariah, and a working wife has to balance between her work and paying attention to family matters, and it also shows that domestic violence within the family is contrary to maqasid shariah that is based on love and compassion between the couple and that occurs as a result of ignorance of the shariah secret in building a family; and it is compulsory on each of them to abide by the shariah teachings and stick to its maqasid (purposes) and to implement them in the family life, and with this, family life will last in the obedience of Lord Allah (swt).

Family Problems - Wife’s Work - and Its Solution in the Light of Maqasid Shariah

Study problems revolve around the emergence of social problems resulting from the fact that the wife goes out to work which leads to neglecting certain rights and obligations. Moreover, the cases of domestic violence by beatings and verbal abuse in all its forms increased. Accordingly, the importance of the study lies in building a happy family which is the first core in building a society; it is essential to protect its integrity and foundations, and also the role of maqasid shariah appears to be crucial in solving contemporary family problems. This study aims to highlight the rights and duties between spouses in accordance with Islamic law, and to identify the reasons and motivations that led to the existence of these problems and how to address them from the maqasid shariah perspective. The study adopted inductive and analytical approach by looking into schools of Islamic jurisprudence, and discussing the authorities relied on by the jurists to see the points of agreement and disagreement, and then the analysis of texts and issues in the light of maqasid shariah. The study found that the main reason for having family problems is lack of knowledge of the spouses of rights and duties and abiding by them. And wife’s work is permissible by the shariah within certain limits and restrictions and not to contradict maqasid shariah, and a working wife has to balance between her wok and the interest of her family.

Islamic constitutionalism and rule of law: a constitutional economics perspective

This study investigates the relationship between Islamic constitutionalism and rule of law. Al Azhar, one of the most respected Sunni religious institutions in the world, developed a model of an Islamic constitution. This study uses Al-Azhar’s constitution as a model of Islamic constitutionalism and examines its stance in regard to the rule of law. We find the Al-Azhar’s constitution to be incompatible with essential concepts of rule of law. For example, the powers vested in the head of the Islamic state are enormous, making the executive branch of government far superior to the legislative and judicial branches. Women and non-Muslims are explicitly discriminated against throughout the constitution. Moreover, laws stemming from this constitution are not stable since many differences exist among schools of Islamic jurisprudence (fiqh). Consequently, we show that state-of-the-art Islamic constitutionalism lacks essential components needed in any constitution based on rule of law.