Traditional Islamic Jurisprudence Research Articles

Understanding and Framing Change in Islamic Law: Potentials and Possible Pitfalls of the Concepts of Canonization and Codification

Abstract Conservative and populist notions of Islamic law, or Sharīʿa, emphasize its immutability. While the textual nature of traditional Islamic jurisprudence supports this conception, academic research in recent decades demonstrates that Islamic law saw constant change and development. We also witness an increasing acknowledgement that several processes of change do not always follow the rich and advanced emic narratives and theories of how change allegedly did or should happen. The possibility of change is also intimately connected to theories of authority, where normative and descriptive models may give different pictures. Several historians and anthropologists of Islamic law have resorted to ‘canonization’ and ‘codification’ as concepts employed to understand and frame significant change, partly intending to create an analytical distance to the study object, unrestricted by the Islamic tradition. While the two concepts have hitherto been employed separately, they have one thing in common: their focus on selection and authorization. This article will first demonstrate how these concepts have been used in Islamic legal studies and then further argue that by juxtaposing and comparing these two concepts, new insights can be gained regarding their potentials and pitfalls.

Analysis of the Influence of Fiqh and Maqasid al-Syariah in the Formation of Islamic Legal Policy in Indonesia

This research delves into the complex interplay of Fiqh and Maqasid al-Syariah in shaping Islamic legal policy in Indonesia, employing qualitative methods such as in-depth interviews, content analysis, and document analysis. The study reveals the explicit incorporation of Fiqh in legislation and its influence on judicial decisions, highlighting the enduring role of traditional Islamic jurisprudence. Simultaneously, Maqasid al-Syariah emerges as a guiding ethical framework, fostering adaptability and providing opportunities for aligning legal objectives with overarching Islamic principles. The research explores the harmonization efforts, tensions, and collaborative initiatives in navigating the intersection between Fiqh, Maqasid al-Syariah, and contemporary legal frameworks. The findings contribute to a nuanced understanding of the dynamic relationship between tradition and adaptation in Islamic legal policymaking in Indonesia

Islamic orthodoxy-based character education: creating moderate Muslim in a modern pesantren in Indonesia

Pesantren (Islamic boarding school) has been contributing to build moderate character for Muslims in Indonesia towards globalization. However, amid peaceful Islam disseminated in the country, nowadays, radical Muslim movement challenges this character. This study aims to describe the construction of turats (traditional Muslim virtues), which has been taught in pesantren as an orthodox teachings legacy, to create young Muslim with moderate attitude through character education. It will also highlight about how and why character education with Islamic orthodoxy content is necessary to be inculcated in pesantren to produce moderate Muslim. Qualitative research was employed in this study, with a case study approach. In doing so, data collection was carried out through interviews, observation, and documents analysis techniques. The results demonstrated that the moderate character building based on the modernization of turats is derived from the renowned dogma of the ushul fiqh (traditional Islamic Jurisprudence); al muhafadhatu 'ala al-qadim as-sholih wal akhdu bi al-jadid al-ashlah (maintaining good tradition and employing the new-better one). It also revealed that within 24 hours pesantren learning activities, this jargon is disseminated to the students through the concept of Islamic guidance. In this concept, moderate character values infused to the student’s activities are rooted to the Qur'an (Muslim holy book) and Hadits (Prophet’s wisdom) as the religious foundation, the founding fathers’ vision (historical foundation), the pesantren mission (institutional foundation), and the contextual experience (empirical foundation) as well as the dynamic challenges of the globalization. The entire character education process paves a pivotal way to the moderate Muslim generation creation.

Analysis of the Triple-Talaq Within the Framework of Judiciary in India With Reforms of Sharia Law

Divorce in Islam usually takes variety of forms. The Traditional legal categories of Islamic divorce are talaq (repudiation by husband), khula (buying of freedom by the wife) and mubarat (mutual consent). The rules of divorce have always been governed by Sharia, as interpreted by traditional Islamic jurisprudence. However practices have often digressed from true Islamic spirit.Though Quran is egalitarian and justice its cornerstone but gender inequality of divorce practices that have existed in pre-Islamic Arabia are still vogue. By all reasons, women are particularly vulnerable. Triple-talaq has been an issue of much controversy and debate. The practice has been criticized on grounds of gender justice, equality and human rights. The Supreme Court of India in its landmark judgment on 22nd August 2017, have declared the practice of triple talaq as un-constitutional and has left to the government to legislate on the issue. However, what the court has banned is the ‘instant’ version of triple talaq, where the husband utters the word talaq thrice and capriciously breaks the marriage-bond. It must be pointed out that as regards the Muslim community all issues relating to family sphere are regulated by the Muslim Personal Laws. The Constitution of India lays down that personal laws of the community would remain untouched and all issues where both parties are Muslims should be adjudicated in the light of their personal laws.

Necessity of Reinterpretation of Sharia in the Thoughts of a Grand Ayatollah: Saanei’s Response to the Challenge of Human Rights in Islam

Abstract The common method of the traditional Islamic Jurisprudence in seminaries has been challenged by Ayatollah Yousef Saanei, one of the ten prominent Iranian Grand Ayatollahs. Saanei is well known for attempting to institutionalize a new method of Ijtihad, known as searching Ijtihad, which seeks to reconsider the common mode of understanding religious texts and jurisprudential inferences. His experiences of observing the systematic ineffectiveness and discrimination in popular jurisprudence regarding women’s rights, family, and religious minorities persuaded him to take scientific action in revising the common jurisprudential method. In the present paper, the necessity of revising the common jurisprudential approach in seminaries from Saanei’s point of view is firstly studied. Afterwards, the foundations, principles, and methods of modern Saanei’s Ijtihad will be investigated to determine the structure and foundations of his jurisprudential method and evaluate its impact on resolving the contradictions between traditional perceptions of religion and human rights.

Narsisme Ulama: Dilema dan Posibilitas Rekonstruksi Ushul Fiqh di Indonesia

<p>This paper describe the construction of the <em>uṣūl al-fiqh</em> initiated by Hasan al-Turabi that be dialogued with the religious conditions in Indonesia. Its aim is to find the possibility and inventory the constraints of the reconstruction of the <em>uṣūl al-fiqh</em> in Indonesia. This study uses the hermeneutical method of Paul Ricoeur in analyzing the theoretical ideas of Hasan al-Turabi. In this study found the biggest dilemma of reconstruction of <em>uṣūl al-fiqh</em> in Indonesia: the narcissism of scholars and egoism of intellectuals. Apart from that, there are conditional possibilities found, in order to reconstruct <em>uṣūl al-fiqh </em> in Indonesia, i.e.: 1) willingness, facilities, protection and consis­tency of the government, and 2) the inclusiveness of traditional clerics in order to create a dialogue on the traditional jurisprudence understood by them with the modern scholars and experts of various sciences. The author concluded that only the integration of modern sciences with the traditional Islamic jurisprudence, that <em>uṣūl al-fiqh</em> re­con­struction could be implemented in Indonesia.</p>

The End of Traditional Islamic Jurisprudence in Hermeneutics of Moḥammad Mojtahed Shabestarī

The End of Traditional Islamic Jurisprudence in Hermeneutics of Moḥammad Mojtahed Shabestarī

L’État islamique, entre tradition réinventée et utopie politico-religieuse

In 2014, many saw in the establishment of the Islamic State over parts of Iraq and Syria and in the subsequent “restoration” of the Caliphate by Emir Abou Bakr al-Baghdadi a "return" to the foundations of Islam as well as the fulfilment of the dream of an Islamic "renewal". The Islamic State was thus depicted by its supporters as a political entity that was supposed to have existed since the beginning of Islamic political history and as being an intrinsic part of traditional Islamic jurisprudence. In fact, however, the Islamic State belongs largely to an “invented tradition” and is better interpreted as a politico-religious utopia, with little connection to the past.

VISIBILITAS HUBUNGAN KEMITRAAN PADA POLA INTERAKSI SUAMI-ISTRI DALAM PANDANGAN AL-SYAFI’I

The Perspective of al-Syafi’I on Partnership in Marriage In husband and wife relationships, contemporary couples prefer a partnership pattern rather than one of leadership. Although the latter is not necessary better than the former, it is obviously more accommodative of modern ideas of justice, egalitarianism and gender equality. This article aims to explore the connections between household partnership patterns, as fundamental to contemporary Muslim’s, and the traditional Islamic jurisprudence (fikih) most dominant among the diverse adherents of Islam. More specifically, this research describes al-Syafi`í thought. To explore the partnership patterns of married couples, it elaborates on three points: (1) the meaning of qawwamuna, (2) the concept of bride price and household expenses, and (3) interactions between husband and wife. The primary resource use in this research is al-Umm. This article concludes that Syafi’i jurisprudence implicitly accommodates the idea of partnership between marriage partners, as evident in (1) the acknowledgement of a woman’s right to choose her husband; (2) the bride price, which has both legal, formal and moral implications; (3) the co-understanding of the marriage partners in matters of household expenses and the emphasizing of discussion in solving financial problems; and (4) the use of good reason in dealing with household and personal conflicts.

Islam and Human Rights: A Growing Rapprochement?

AbstractCan Islamic thought provide a basis for a fully developed theory of human rights? This article begins with an examination of the tensions between religion in general and the secular framing of the Universal Declaration of Human Rights (UDHR). From a historical perspective, it then delves into the history of the relationship between Muslim political and religious leaders and the UDHR. With that background in mind, the author analyzes the positions of three influential Muslim scholars on human rights: Khaled Abou El Fadl's emphasis on ethics and law; Abdulaziz Sachedina's recent book Islam and the Challenge of Human Rights (2009), in which he urges the traditionalists to develop a “public theology”; and finally, Abdullahi An‐Na'im's focus on shari'a and the secular state. He concludes that the majority of Muslims worldwide remain more conservative than these authors, and yet they overwhelmingly support the notion of human rights. This bodes well for the growing influence of such reformist thinking and, as a result, for the retooling of traditional Islamic jurisprudence in addressing human rights.

An Islamic perspective on water quality: a case of Malaysia

Water pollution has long been a crisis of life-threatening proportion in many Muslim countries. It is therefore timely to determine the role of traditional Islamic jurisprudence in outlining the water quality standards. This study examines the Islamic and scientific approaches in appraising water quality. More specifically, this study used the Taharah–Najasah (T–N) standards (pertaining to purification and degree of pollution) as stated in Islamic jurisprudence of purification to analyse the water classes, index ranges and parameters of the water quality index stipulated by the Malaysian Department of Environment. It is important that the T–N standards are taken into consideration in determining the water quality so that Muslim communities are assured of the purity of the water used in performing worship and instilling healthier water habits among Muslims. At the same time, the application of T–N standards in gauging water quality will also benefit the whole nation as the unique characteristic of mutlaq water (purest and purifiable water) can help significantly in formulating an innovative and advanced water quality index and hence in alleviating the water pollution issue The resemblances can be found in the aspects of acceptability (taste, odour and appearance).

Human Rights and New Jurisprudence in Mohsen Kadivar's Advocacy of “New-Thinker” Islam

AbstractIn 2001, Mohsen Kadivar (1959-), a Qom-trained Shi'ite mujtahid, began advocating what he has alternately termed “spiritual Islam”, “goal-oriented Islam”, and “new-thinker Islam”. No longer just a critic of the “rule of the jurisprudent” (wilāyat-i faqīh) doctrine, Kadivar started to set forth his version of postrevivalist Islam, a kind that characteristically highlights its spiritual aspects but is nonetheless self-consciously anchored within the framework of Islamic jurisprudence. In this article, I will first examine Kadivar's arguments about the fundamental conflict between the traditional exegesis of Islam and modern human rights norms, the inadequacy of traditional Islamic jurisprudence as a means to tackle the conflict, and his proposed approach to solving the problem. I will then critically discuss certain controversial aspects of the new exegesis that Kadivar has proposed—particularly, the issues surrounding the abrogation of accepted precepts of sharī'a and the newly introduced conception of the intrinsic rights of human beings—as well as its significance and cogency. These examinations will highlight the unique emphasis that Kadivar has put on jurisprudence as the means to come to terms with the challenges of modernity, in contrast with more explicitly hermeneutic approaches preferred by some of his peers within the emerging postrevivalist current in Iran.

Indonesian Movements for the Creation of a 'National Madhhab'

AbstractDuring the middle decades of the twentieth century, Indonesian Muslim scholars participated in a movement for the creation of a new "national madhhab." These unprecedented developments took place within contexts of modernity in which the epistemological structures of traditional Islamic jurisprudence, as known and practiced in Indonesia, were faced with challenges by both "Western" and Islamic reformist thought. This essay presents an overview of these developments that highlights their significance for comparative studies of modern Muslim jurisprudence, with particular reference to the works of Hasbi Ash Shiddieqy and Hazairin.