Madhhab Research Articles

Islamic commercial law in action: a look into AAOIFI’s Sharīʿah standard on Waqf

Purpose The purpose of this paper is to analyse the Sharīʿah Basis of AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” and gain an insight into the Islamic jurisprudential schools of thought depended on while drafting/issuing the standard. Design/methodology/approach This research uses a qualitative methodology and AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” as a case study. This is referred to as a single/holistic case study design. Findings The findings of this study reveal that while AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” did depend on the Maliki school of fiqh, it certainly referenced other jurisprudential schools of thought, such as Ḥanafī and Shāfiʿī schools of law. This raised a question of legal pluralism and how contemporary Sharīʿah jurisconsults are able to select rulings within particular Islamic jurisprudential schools to fit current needs and for the overall betterment of society. Research limitations/implications This research does not delve into the technical aspects of AAOIFI’s waqf standard (furūʿ al-fiqh), but rather, is limited to understanding the basis of rulings therein and the jurisprudential schools of thought heavily depended on. Originality/value Given that the (revised) AAOIFI waqf standard is relatively new, limited studies have been conducted particularly focusing on the basis of Sharīʿah rulings therein. This research contributes to knowledge by providing one of the starting points to deliberate on this matter.

Influence of the Environment on al-Layth bin Sa’d´s School of Islamic Law

The aim of this study is to bring back to the light one of the forgotten Islamic jurist al-Layth bin Sa‘d, and find out how the environment may have influenced his legal reasoning. The first part focuses on the influence of a specific environment on human thinking in general and points to the factors influencing the formation of Islamic law in various areas in paticular. The rest of the paper discusses Layth ibn Sa‘d´s personality and the elements that may have contributed to his conception of legal thought; the very multi-religious nature of early Islamic Egypt has been identified as one of the significant elements that helped shape the central nature of his legal school. The conclusion of the study provides examples of some legal rulings issued by him, in which the key role of his environment is clearly demonstrated, and the different legal approach of other lawyers is pointed out.

Waqf Exchange in Four Mazhabs of Jurisprudence: A Case Study of Infrastructure Projects in Indonesia

The infrastructure development program planned by the Joko Widodo administration in several regions, especially in Purbalingga and Tegal, displaced several waqf lands. This study analyzes the process of waqf exchange in the project from the perspective of the four madhhabs. This research uses a comparative approach by comparing several opinions of the scholars of the fiqh schools of thought on waqf swaps on the same side and, at the same time, also explaining the different sides. What is interesting in the discussion is the solution offered by replacing the waqf land with other land, even though Waqf has a primary principle in its administration, namely, the principle of Waqf must remain eternal (ta'bid al-asl). The theory of benefit becomes an analytical tool for developing a mindset regarding waqf exchange. This research yields the following conclusions. First, waqf management can change according to the public interest as long as the purpose of the Waqf is still to the expectations of the Waqf. Second, waqf exchange is the best solution when there is no other way, as long as the replacement is at least the previous Waqf.

The Transformation of Islamic Property and Evidentiary Law in Colonial-era Morocco: The Case of Shufʿa as Préemption

Abstract A cornerstone of French land policy in colonial Protectorate Morocco (1912–56) was to restrict jurisdiction of sharīʿa courts while maintaining sharīʿa-based property laws in French courts. This article examines the Islamic property concept of shufʿa (the right of “preemption” or “first-refusal” for co-owned land) as adjudicated in sharīʿa courts and French courts of colonial-era Morocco. Both jurisdictions claimed to uphold the provisions of shufʿa stipulated by the Mālikī legal school of Islamic law; however, the French courts used a codified version—le droit de préemption—while relying on property facts established by the new colonial institution of land registration (Fr., immatriculation foncière; Ar., taḥfīẓ ʿaqārī). By analyzing paradigmatic shufʿa disputes in each jurisdiction, the article argues that evidence and procedure are critical to understanding Islamic law’s encounter with the colonial state. Most importantly, French courts implemented a hybrid version of Islamic property law in which immatriculation supplanted Islamic legal modes of proof making. The French hybrid approach thus constituted a competing version of state sharīʿa that was mutually exclusive with the sharīʿa courts and persisted into the post-colonial period. This discussion more broadly seeks to center property, evidence, and judicial procedure in scholarly narratives concerning twentieth-century Islamic legal history.

Tinjauan Hukum Islam Terhadap Putusan Cerai Gugat Beralasan Suami Terpidana Penjara

This in-conreto legal research delves deeper into the legal basis determined by the Panel of Judges in deciding on a divorce lawsuit because the husband is a convict. The research takes a case that has been determined in one of the Religious Courts in the Special Region of Yogyakarta number 0909/ Pdt.G/2011/PA.BTL (0909). The results are then discussed in more depth according to Islamic law. Through the exploration of the rules of fiqh and the proposals of fiqh as well as interviews with several judges, it can be interpreted that the judge's decision has referred to the interests needed in the family by avoiding the risks that may arise due to the father/husband being sentenced to prison for several years. In the review of Islamic law, the judge has fulfilled the rules of fiqh and followed the fatwa of the agreed-upon fiqh school of thought.

تداعيات الاختلاف بين المدارس الحديثية

When the disagreement occurred among the Fiqh schools in methodology and deduction, particularly between the school of Ahl Al-Hadith and the school of Ahl Al-Ra’y, it was important to examine and extrapolate the approach of each school in order to identify the points of agreement and disagreement between them. This research aims to identify Ahl Al-Hadith and the concept of Ahl Al-Hadith’s school, clarify the meaning of Ahl Al-Ra’y and the concept of Ahl Al-Ra’y’s school, deduce the methodology that each school adhered to and elucidate their contributions to the Sunnah and its sciences, and conduct a comparison between the two schools to highlight the points of agreement and disagreement between them. To this regard, I combine the inductive, analytical, and comparative approaches. The research is arranged into an introduction, three treatises, a conclusion, a list of bibliography and references. Then the research ends with several findings, including: Ahl Al-Hadith refers to those who have a close connection with the traditions (Athar) through seeking, collecting, understanding, memorizing, narrating, following, and acting accordingly, both outwardly and inwardly, and they possess the critical faculty and the fine discernment to distinguish between authentic and unauthentic narrations of the Prophet (PBUH). Meanwhile, Ahl Al-Ra’y refers to those who consider issues and engage in Ijtihad (Shariah-based-reasoning), and use analogical deduction (Qiyas) in matters of creed and Fiqh, whether their Ijtihad is reprehensible or praiseworthy. As for the recommendations, the most significant among them is the need to understand that disagreement among the four schools of Fiqh pertains to subsidiary matters, while they agree on the fundamental principles of issues.

Kompetensi Pengadilan Agama Memfasakh Perkawinan atas Dasar Peralihan Agama

Cancellation or fasakh of marriage due to religious conversion is not included in the family cancellation of marriage as part of the competence of the Religious Courts, but it is implemented through divorce institutions, giving rise to disparities in decisions between fasakh, talak bain and talak raj'i permission. The author found two Supreme Court decisions that canceled and corrected the decisions of two High Religious Courts that canceled a marriage because it was proven that one of the husband and wife had a religious conversion. The Supreme Court is of the opinion that the permit to impose talak raj'i is more appropriate on the grounds according to the posita and petitum of the petition. The Supreme Court consistently applies this rule in its two decisions, but the author finds eleven decisions of the Religious Courts in the following years still impose fasakh if it is proven that one of the married couples is an apostate (out of Islam), even though it is not used as an excuse for divorce and is not requested by the party in the petitum. In this article, the author will examine the legal considerations of eleven Religious Court decisions using an explanatory method and presented qualitatively. The results of the author's study show that the judge's consideration is influenced by the judge's perception of the application of the ultra petita principle with the principle of ex aequo et bono, the judge's perception of the adjudication of fiqh schools and the judge's perception of the independence of judges and compliance with jurisdiction.

KAEDAH PENDALILAN QIYAS DAN APLIKASINYA DALAM KEWANGAN ISLAM SEMASA

Qiyas plays a crucial role in the formulation of Sharia law, being one of the primary sources of evidence used in the science of usul al-fiqh. Although usul al-fiqh, the science that discusses the process of deriving legal rulings, is a necessity for those involved in the issuance of legal rulings, it is observed that in the current context, the literature on usul al-fiqh has not received adequate attention, especially in the domain of Islamic finance. Therefore, one of the suitable sources of usul al-fiqh for resolving modern issues that were not addressed in ancient times is the source of qiyas. Qiyas is essential in determining the element of similarity from the perspective of the ‘illah (effective cause) of the law between an issue explicitly mentioned in the Sharia texts and a new issue. Furthermore, this source is accepted as evidence by the reputable scholars among the four Sunni schools of thought. This study aims to analyze the application of qiyas as evidence in contemporary Islamic financial practices. The study employs a qualitative approach, involving a literature review encompassing books, journals, and relevant circulars. The collected materials are analyzed using document analysis methods. The findings of the study indicate that several practices in Islamic finance are implemented based on the justification of qiyas. These practices include issues related to fiat currency, the requirement for a minimum amount of physical assets in sukuk, the zakat on jewelry (gold and silver), and the zakat on publicly listed company shares. Therefore, it can be concluded that qiyas plays an important role as a primary reference for contemporary issues in Islamic finance. It is recommended that current Islamic finance industry practitioners thoroughly understand the source of qiyas.

KAEDAH PENDALILAN MASLAHAH MURSALAH DAN APLIKASINYA DALAM KEWANGAN ISLAM KONTEMPORARI

This study aims to investigate the application of Maslahah Mursalah reasoning in contemporary Islamic finance. The motivation for this study arises from the modernization of Islamic banking practices, which have adapted conventional financial systems through structural and operational changes. Consequently, it is necessary to evaluate these practices from a Shariah law perspective. One of the principles of Usul al-Fiqh that is relevant for addressing modern issues not addressed in earlier times is the principle of Maslahah Mursalah. Maslahah Mursalah is a significant principle for determining the compliance of an action with Shariah. Furthermore, this principle is accepted as valid by renowned scholars among the four Sunni schools of thought. The objective of this study is to analyze the implementation of Maslahah Mursalah reasoning in current Islamic financial practices. A qualitative approach is employed, which includes a literature review of books, journals, and relevant circulars. The gathered materials will be analyzed using document analysis methods. The findings of this study indicate that several practices in Islamic finance are implemented based on the justification of Maslahah Mursalah. These practices include issues such as the inclusion of a 'promise to purchase' in Murabahah to Purchase Order (MPO) contracts, the determination of Ibra' (rebate) in financing contracts, and the combination of contracts in Islamic financial products. Therefore, it can be concluded that the principle of Maslahah Mursalah plays a significant role as a primary reference for contemporary Islamic finance issues. Consequently, it is recommended that operators in the current Islamic financial industry have a thorough understanding of the principle of Maslahah Mursalah.

Navigating Pluralism in Islamic Jurisprudence: A Comparative Analysis of Mut'ah Marriage in Ja'fari and Sunni Schools of Thought

This study examines the differing views on mut'ah (temporary) marriage between the Ja'fari and Sunni schools of Islamic jurisprudence through a comparative analysis of their legal reasoning methodologies. Employing qualitative research methods including textual analysis of primary sources, historical examination, and comparative legal analysis, the study explores the origins of these divergent interpretations and their implications for contemporary Muslim societies. The findings reveal that differences in scriptural interpretation, hadith authentication, and legal principles contribute to the contrasting positions on mut'ah marriage. While the Ja'fari school considers it permissible based on Quranic verses and certain hadith, Sunni schools generally prohibit it, citing abrogation and potential social harms. The study highlights how these differing views reflect broader patterns of legal pluralism in Islamic jurisprudence and impact contemporary debates on gender, marriage, and religious authority in Muslim communities. By critically evaluating arguments from both traditions, this research contributes to a more nuanced understanding of Islamic legal diversity and its ongoing negotiation in modern contexts.

An Evaluation on the Effect of Differences in Recitations on Islamic Law: Within the Context of Intercourse with a Woman After Menstruation

The main source of Islam is the Holy Qur'ān. Qirā’a is the branch of science that deals with the different ways of reciting the words of the Qur'ān. For this reason, the science of qirā’a has a special place and importance among the basic Islamic sciences. The fact that the Qur'ān ranks first among the primary evidences in Islamic jurisprudence methodology has made it directly related to the science of qirā’a. At the beginning of Islam, the verses revealed were transmitted firsthand by the Prophet (PBUH) to his companions, who in turn would teach these verses to others. The differences in reciting that existed in this process led to the types of qirā’a called 'seven ahruf/letters'. Believers would first learn the different qirā’āt that they heard from the Prophet (PBUH) and then pass them on to the others. However, in addition to the authentic qirā’āt, the unauthentic qirā’āt that emerged over time directly affected the Islamic legal doctrine. Especially the differences in the most accurate understanding of the divine word led to the emergence of differences of opinion among Islamic jurists. This, in turn, was the source of the divergence of jurisprudential groups. These divergences between the groups based on the differences in qirā’a have come to the agenda depending on the issues of Islamic law, sometimes usūl and sometimes furū’. These debates have led to different jurisprudential approaches depending on the different interpretations of the verses, which has led to mental turmoil among Muslims. In this study, the impact of qirā’a differences on Islamic legal doctrine is analyzed. In this context, the issue of intercourse with a woman after menstruation, one of the issues of jurisprudence, is discussed., Regarding this, in the text the concept of qirā’a, its types, and the reasons for the emergence of qirā’a differences are first evaluated. For a better understanding of the issue, the approaches of the four fiqh schools to the differences of qirā’a are also examined in a general way. Then, the jurisprudential aspect of the concept of menstruation, the way it is expressed in the verse, and the differences of qirā’a on the related verse are examined, and the legal consequences that arise due to these different qirā’āt are explained. As far as can be detected in the process, most of the studies in the field of basic Islamic sciences are carried out in the form of subject analysis under a specific discipline. Unlike the general studies in the literature, in this research, a fundamental issue related to Islamic law and qirā’a, which is among the basic disciplines of Islamic sciences, has been addressed, which reveals the strong bond and interaction between the two disciplines. In order to have a better understanding of the subject of the present research, special attention has been given to include the fundamental sources of the science of qirā’a along with Islamic law.

Almohad-Era Jewish Jurisprudence: Moses Maimonides and Joseph Ibn ʿAqnīn

Abstract Sarah Stroumsa’s 2009 Maimonides in his World spurred much reconsideration of Almohad influence on medieval Jewish thought. Many now accept that Almohad ideology was at least one crucible in which Moses Maimonides’s thought was forged. This paper broadens exploration of Almohad influences to include Maimonides’s understudied contemporary Joseph ben Judah Ibn ʿAqnīn. It focuses on the jurisprudential theories propounded by these two thinkers in order to evaluate the extent to which their views can be considered distinctively Almohad. Assessment of medieval Jewish legal theory in light of earlier Andalusian and developing Almohad thought allows for a fine-grained level of analysis, pinpointing when Jews endorsed Almohad ideas and when they ratified claims of other schools of Islamic law. In the end, at least on questions of jurisprudence, Maimonides and Ibn ʿAqnīn must be understood within several overlapping and mutually reinforcing traditions, namely, Andalusian Rabbanism, reformed Mālikism, and early Almohadism.

Isbijab – a new centre for the development of Islamic law (XI-XII)

The relevance of this article covers historical, religious, local and diplomatic factors, which reflect the importance of research and the multifaceted nature of Isbijab. The purpose is to study the Isbijab School of fiqh law in the Middle Ages in the context of Islamic law and the history of Kazakhstan. In this work, standard historiographical methods are used: historical-systemic method, historical-comparative method, method of historical periodization and others. The main result is to clarify the role of the fiqh school of Isbijab in the context of studying the history of Islamic law on the territory of modern Kazakhstan and in the region as a whole. The authors also found that Isbijab was one of the centres of Islamic studies and law not only in Kazakhstan but also in the whole of Central Asia in the XI to XII centuries. It was the time when Isbijab developed its legal concept and school of fiqh, the Hanafi madhhab. This school of Islamic law introduced a new generation of legal scholars and their pupils, whose major works and academic degrees paved their way in the historiography. Their experience helped the researchers to study the manuscript works of medieval Isbijab jurists from a historical-legal and theological point of view. The paper shows the findings of an ongoing study of Isbijab legal practitioners in the framework of the "Mukhtasar al-Tahawi" book. Work has practical relevance not only in the context of Islamic studies and Islamic law but also in history, international relations, country knowledge and in other disciplines.

Examining the Istinbat Systems of the Indonesian Ulema Council (MUI), Nahdlatul Ulama (NU), and Muhammadiyah

The purpose of this research is to study the Istinbat system of the Indonesian Ulema Council (MUI), Nahdlatul Ulama (NU), and Muhammadiyah. This research is a qualitative research, the type of research is library research. The data collection method is literature review. The results showed that; Istinbat method of the Fatwa Commission of the Indonesian Ulema Council (MUI) refers to the Qur'an, Hadith, consensus, Qiyas and other legal arguments. In its fatwa, the MUI also does not reject other legal arguments that are not debated by the ulama, such as: istihsan, istishab, sad al-dzari'ah, and other arguments that are still disputed by scholars. The Istinbat method of Nahdatul Ulama Bahtsul Masail Institute implements the concept that Istinbat is not taken directly from the original source, namely the Qur'an and Hadith. However, the extraction of the law is done by dynamically mentatbiqkan (harmonizing) the texts expressed in the book in the context of the problem for which the law is sought. Meanwhile, the istinbat method of tarjih and tajdid assembly refers to the benefit as a priority benchmark without ignoring sociological and anthropological aspects. And in istinbat not bound to a particular school of fiqh.

Bridging the Chasm in the Holy Lands: The Antithesis of Islamic Law to Warfare in the Middle East

The present article scrutinizes the intricacies surrounding defensive warfare aimed at reclaiming territories perceived by Muslims as under non-Muslim occupation through the lens of the four Sunni schools and Twelver Shia perspectives. In Shia jurisprudence, in the absence of the twelfth Imam, the concept of defensive war does not extend to reclaiming Islamic territories per se; rather, Muslims are not sanctioned to engage in warfare solely for territorial defense. Instead, the imperative for Muslim involvement in armed conflict arises only when the fundamental tenets of Islam face jeopardy. According to Shia’s legal interpretation, jeopardizing the core principles of Islam implies a scenario where the erasure of Prophet Muhammad’s legacy and the utter annihilation of Sharia law are imminent. Such a predicament is not contingent upon the occupation of Islamic lands. However, Sunni jurisprudence posits a prerequisite for Muslims to engage in warfare, even in defense, necessitating a certainty of prevailing in the conflict. Consequently, given the contemporary milieu, wherein the requisite conditions for assured victory remain unattainable and are likely unattainable, defensive warfare for territorial reclamation is deemed impermissible. The findings of this inquiry propose an Islamic legal framework that advocates abstention from resorting to warfare concerning the mentioned territories in current circumstances, absolving Muslims of any obligation in this regard. Closing the avenue of armed conflict thereby paves the way for alternative avenues such as negotiation, reconciliation, and peace-building. It underscores Islam’s reverence for human life, prioritizing it over territorial concerns.

Mapping the Bruneian and Acehnese reponses towards sharia law formalization and its implementation

Brunei Darussalam and Aceh are the only two Southeast Asian regions that apply Islamic Sharia law. Both regions have applied Islamic Sharia law for more than ten years and yet have received many reactions from both internal and external regarding the application. This study aims to examine the formulation of sharia in Brunei and Aceh and how the people of Brunei and Aceh respond to its implementation. Based on the findings, Shari law in Aceh hudud tends to appear more liberal and moderate because the ideas are not connected to a school of fiqh. At the same time, Brunei demonstrates a distinct "thread" with traditional fiqh ideas, particularly the Shafi'i school. This article will also discuss groups who accept Islamic law willingly, those who completely reject it, and those who are forced to accept but still criticize it.

Early Mālikī Manuscripts: A Retrospective

Abstract In this review article, I offer an overview of research undertaken thus far on early Mālikī Manuscripts, primarily the collection from Kairouan, Tunisia. Modern attention to this collection dates from the early twentieth century, as the collection itself moved from Kairouan to Tunis and back again. While access to Qurān manuscripts has been highly restricted, select scholars had been allowed to study and make copies of a limited number of legal manuscripts, primarily from the Mālikī school of Islamic law. These limitations had an effect on scholarship, making some forms of codicological and paleographic analysis difficult at best. The last part of the article addresses very recent scholarship and work that remains to be done, including network analysis and other ways of placing these manuscripts within broader social and historical contexts. I close with a reflection on the colonial history of research into these manuscripts and the responsibilities of researchers to reflect on the ethical implications of their activities into the future.

The Necessity of a Standard Prenuptial Agreement for American Muslims

For many Sunni Muslims in the U.S., one of the most important documents in their life might be a marriage contract that unintentionally contains an impermissible amount of gharar (uncertainty). There are seldom disputes when contracts go smoothly, even if gharar is present, but when there are disagreements, it is a cause of major strife. If two Muslims get married, they usually perform a nikāḥ (Islamic marriage contract/ceremony) and then sign a civil marriage contract in their state of residence. Although it would seem that the nikāḥ would imply certain terms for dissolution perhaps based on a classical school of Islamic law or contemporary ijtihād (juristic reasoning) adjusted for modern times and circumstances, the actual authority belongs to a non-Muslim judge and legal system. Does this legal system have a moral right over Muslim marriage contracts in this country, or is the use of such a court an un-Islamic infringement on the other party’s rights and therefore a violation of God’s law? This author recommends couples should explicitly discuss this issue prior to marriage and proposes a standardized prenuptial agreement to minimize unnecessary disputes.

خوێندنگە نيزاميەكان، دامەزراندن و بەرەوپێشچوونيان (٤٥٧-٥٩٠ك/١٠٦٤-١١٩٣ز)

The founding of the regular schools in the year (457AD/1064AD) by Nizam al-Malik as the minister of the Seljuk authority, is considered the oldest school, an organization independent of the mosque, and one of its primary goals is to stand in front of the Shiite current and their path, which then they turn towards the authority and dominance of the Abbasid Caliphate. There is no doubt that the presence of educational and scientific goals and the qualification of government employees in all institutions and departments concerned with the state, as well as providing the needs and stopping the regularities, has become an essential factor for the sustainability and independence of those schools. The Nizamiyah of Baghdad is one of the main centers that many Sunni scholars from the far corners of the earth in the Islamic world traveled to, and they wanted to become a teacher there. Regular schools were established in most of the different cities and regions in the Islamic world, and they began to pay attention to them, and reading the Qur’an was an essential center for study, not to mention other subjects such as Islamic sciences, and then they began to be interested in subjects such as (medicine and mathematics) and other sciences such as astronomy, astrolabe and sociology. The historians considered the Seljuk vizier Nizam al-Mulk Gol a person who established schools in the Islamic world, Since the idea of these schools “produced a kind of limited ideas according to the Shafi’i Sunni school of poetry, whose influence has been present throughout history and now onwards is clearly visible.

Riba and interest in Islamic jurisprudence: seeking the path to consensus

Purpose The purpose of this study is to explain the opinions of the Muslim jurists available in the fiqh books so that they may be compared with the approaches adopted by modern scholars for defining the concept of riba. It is argued that the method of jurists was different from the one adopted by the modern Muslim jurists and Islamic economists. The new method dichotomizes riba into those of the Quran and Sunnah. On the contrary, jurists of four Sunni schools considered the Quran and Sunnah in this regard as a single whole, and they saw Sunnah as the elaboration of riba. By explaining the similarities shared by different fiqh schools, it is explained that there is no need for a definition of riba. Design/methodology/approach The paper uses the method of content analysis. The authors have consulted the authentic fiqh manuals of the four Sunni fiqh schools to substantiate the objectives. Findings One of the major findings of this paper is that interest charged in loan transactions, including bank loans, is riba according to the four Sunni fiqh schools. Moreover, the paper also shows that the similarities among the four Sunni fiqh schools are far more significant than the often-highlighted disagreements among them regarding the concept of riba. The methodology adopted by modern Muslim scholars seems to add confusions around the concept of riba. Research limitations/implications The paper discusses views of only four Sunni fiqh jurists. Originality/value The paper explains the common methodology followed by the jurists for understanding riba, the significant similarities resulting from their common method, the link between the concept of riba and different types of financial transactions within the framework of the jurists and that combining several fiqh schools at a time is a contradiction-ridden methodology.