scholarly journals Finding Direction at the Edge of Law and Life: Islamic Fiqh, Correspondence, and UAE Takāful Insurance Regulation

Author(s):  
Iyad Mohammad Jadalhaq ◽  
Luigi Russi

AbstractThe Islamic legal enterprise forms an inherently plural system that can appear puzzling to commentators looking for faithfulness to principle or precedent. When one looks at it, instead, as an ongoing search for correspondence between divine guidance, rooted in the foundational sources of Islam, and the singularity of concrete circumstances, Islamic law is revealed as a practice of discernment against the grain of the particular. This article unfolds this approach to understanding Islamic law by entering the conversation where it is currently most heated, namely in connection with the development of Islamic financial products. A case study of takāful regulation in the United Arab Emirates (UAE) helps substantiate the import of our proposal for attuning to the voice of Islamic jurisprudence (fiqh), in the face of contemporary questions arising from the design of financial products in correspondence with the Sharī’ah.

Global Jurist ◽  
2019 ◽  
Vol 19 (2) ◽  
Author(s):  
Iyad Mohammad Jadalhaq ◽  
Mohammed El Hadi El Maknouzi

Abstract This article reveals the different formative layers at work in a mixed system of law, such as that of private law in the United Arab Emirates (uae), by focusing on the lack of coherence between competing ‘architectural principles’. This experience of friction is regularly encountered by a skilled interpreter of the law, in the course of his/her activity of ensuring predictable and appropriate legal responses to practical problems. Specifically, this piece tracks the interpretive difficulties surfacing in cases of supervening impossibility of performance for loss or damage to a necessary item, when that loss or damage originates in a causal factor outside of the defendant’s sphere of control (‘extraneous cause’). In such cases, the contract is terminated and the legal question shifts to one of awarding compensation for the loss or damage suffered by the item. In the face of this question, two competing criteria for assigning liability come into play. On the one hand, the civil law distinction between unilateral and bilateral contracts, meaning contracts giving rise to obligations upon only one or both parties to the contract. On the other hand, the categories of trust-based, liability-based and mixed possession in Islamic law. Here, liability is assigned based on the material circumstances that define the manner of possession, as opposed to looking at the abstract scheme of performance and (if available) counter-performance. The categories drawn from Islamic law have the potential to unify a number of apparently scattered provisions in the uae Civil Code: for this reason, the article puts forth a recommendation to follow the approach of the Iraqi Civil Code and acknowledge those categories as an explicit organising principle for assigning liability in the presence of an extraneous cause. The paper makes an additional recommendation to treat the classification of possession (as trust-based or liability-based) as a matter of public policy, unavailable for the parties’ consensual deviation.


Author(s):  
Naureen Akhtar ◽  
Atia Madni ◽  
Rais Nouman Ahmed

Purpose: This research paper aims to study the standing of learning of Islamic Law in contemporary universities. The present study highlights the significance of Islamic Law learning to the legal practitioners (Bar) and legal academicians in general and to the judges (Bench) in particular. This paper endeavors to conduct a case study of learning of Islamic law in contemporary universities in Muslim and Non-Muslim jurisdictions. Methodology: For the purpose of this research paper, two universities have been selected where departments of Islamic law learning are established, i.e., Faculty of Sharīʻah & Law of International Islamic University, Islamabad and Harvard Islamic Legal Studies Program of Harvard law School. This study explores that how far the above-mentioned institutions in various jurisdictions have been successful in imparting Islamic Law education among their law students. It follows discussion on the relevancy of Islamic law learning and its understanding in the solution of contemporary issues of the modern world. Findings: This paper finds that Islamic law, being based on divine guidance, is the complete code of conduct and therefore, provides guidelines to discover and find out the solutions of all issues of modern world to Bar, academicians and Bench.                                                           


2012 ◽  
Vol 55 (1) ◽  
pp. 117-152 ◽  
Author(s):  
James E. Baldwin

AbstractThis article examines the treatment of prostitution in several genres of Ottoman legal writing—manuals and commentaries of Islamic jurisprudence,fatwās(legal opinions) andḳānūnnāmes(Sultanic legislation)—and looks at how prostitution was dealt with in practice by the empire’s sharīʿa courts and by its provincial executive authorities. The article uses prostitution as a case study to investigate the relationships between the different genres of legal writing and between normative law and legal practice. It also throws light on various manifestations of prostitution in the Ottoman provinces of Egypt and Syria between the mid-sixteenth and mid-eighteenth centuries.


Author(s):  
Abd Moqsith

There are problems of islamic jurisprudence existing in society, but Qur'an and hadith as the references of shari'a are keep stagnant. Text of Qur'an and hadith are stagnant-without development, while the problems of jurisprudence are still growing. In fact, it is impossible to leave the problems without a solution. In that context, like other Islamic organizations, Nahdhatul Ulama (NU) actively issues religious fatwas. In order to keep the religious fatwa still based on the islamic law, NU has established a procedure of bahtsul masail, which is a scientific forum to respond the problems of jurisprudence, both individual and public jurisprudence related to public affairs. In delivering fatwa or answering the problems of jurisprudence, NU likely only picks up old Jurisprudence reference which are relevant to the problems. However, NU is allowed to perform ilhaqul masa'il binadhairiha, even istinbath in jama'i if the problems of Jurisprudence which can not be solved with the old Jurisprudence reference.


Author(s):  
علي عارف

ملخّص يرمي هذاالبحث إلى بيان القضايا الشرعية التي تتعلق بالسر المهني، وبيان ما أبداه الفقه الإسلامي المعاصر من اهتمام بأحكامها، مع ذكر المسوغات والاستثناءات الشرعية في إفشائه، وتأصيل ذلك تأصيلاً شرعياً. ولقد جمع الباحث بين المنهج الاستقرائي في تتبع النصوص الشرعية، وجمع آراء الفقهاء القدامى منهم والمعاصرين، ثم تحليلها والمقارنة بينها ثم ترجيح ما يراه الباحث راجحاً، مع الإشارة إلى أحكام القوانين الوضعية في مثل هذه الحالات. ولقد توصل الباحث إلى أن السر الطبي حق للمريض لا يحق للطبيب إفشاؤه إلا برضا المعني حفاظاً على الأمانة أو في حالات استثنائية محدودة، كما أنه جريمة يعاقب عليها تعزيراً في الفقه الإسلامي، مع إيجاب التعويض في حالة لحوق الضرر المادي. الكلمات الرئيسة: إفشاء السر، السر الطبي، خيانة الأمانة، كتمان السر، التعويض المالي. Abstract This research aims to explain Islamic legal issues related to professional secrecy, and state the views from the contemporary Islamic Jurisprudence on the matter. It also mentions Islamic legal rationale and exceptions to reveal secrecy, grounded on legitimate arguments. In doing so, the researcher combines between inductive approach in finding the relevant religious texts, and the opinions of classical and modern scholars, and analyzing them and comparing among them in order to arrive at the more proper opinion among them, with reference to the provisions found in current civil laws for such cases. The researcher found that medical secrecy is the right of the patient and in order to preserve the trustworthiness, the doctor may not disclose it without his (patient’s) prior consent, or he is allowed to disclose it only in certain exceptional cases. It is also found that it could become an offence under the Islamic law, which is punishable through discretionary judgment, and obligation of compensation in cases of physical damages to the patient. Key Words: Revealing Secrecy, Medical Secrecy, Betrayal of Trust, Hiding Secret, Monetary Compensation. Abstrak Kajian ini bertujuan untuk menjelaskan isu perundangan yang berkaitan dengan kerahsiaan dalam amalan profesional seterusnya menjelaskan pandangan dari Fiqah Islam kontemporari mengenai isu ini. Ia juga menyatakan sebab-sebab dan keadaan-keaadaan yang dikecualikan untuk melakukannya berdasarkan kepada hujah-hujah yang perundangan yang muktamad. Untuk tujuan  ini, penyelidik menggabungkan antara pendekatan induktif dalam mendapatkan teks-teks agama yang relevan dan juga pendapat ulama lama dan moden. Analisa dan perbandingan di antara pendapat-pendapat ini akan dibuat untuk melihat yang manakah di antaranya yang lebih kukuh berdasarkan juga kepada apa yang boleh didapati daripada undang-undang sivil semasa untuk kes-kes tersebut. Hasil kajian mendapati bahawa kerahsiaan perubatan adalah hak pesakit dan pegawai perubatan berkenaan tidak boleh mendedahkan perkara tersebut tanpa persetujuannya untuk menjaga apa yang telah diamanahkan kepadanya atau atau dalam keadaaan-keaadaan tertentu yang dikecualikan. Ia juga didapati bahawa pendedahan yang dilakukan boleh menjadi satu kesalahan yang boleh dihukum berdasarkan Undang-undang Islam, serta boleh dituntut ganti ruginya sekiranya ia melibatkan kemudaratan berbentuk fizikal yang mungkin dialami oleh pesakit. Kata Kunci: Penyebaran Rahsia, Rahsia Perubatan, Khianat, Menyimpan Rahsia, Gantirugi Harta.


This book is an authoritative practical guide to financial transactions under Islamic law. Global interest in Shari’a-compliant financial practices continues to increase, but Islamic financial products can often be hard to understand, not least because they often cut across rather than strictly align with more conventional financial products. This book provides the necessary explanation by describing the theoretical underpinnings of Islamic finance as a whole before going on to examine the major individual transaction structures in detail. The first part of the book informs the reader about the general background to Islamic finance and the relevant aspects (and sources) of Islamic law. It also considers the role of Shari’a supervisory boards, Islamic financial institutions and accounting approaches. The second part of the book concentrates on Islamic financial law in practice by focusing on individual concepts and techniques. This section explains the basic requirements for Islamic finance contracts both in terms of the underlying asset types and also both the applicability and acceptability of the underlying asset. Arrangements discussed include Mudaraba (trustee finance), Musharaka (partnership or joint venture), Murabaha (sale of goods), and Sukuk (participation securities: coupons etc). Takaful (insurance) is also examined in detail. A new chapter has also been added to this second part of the book detailing the principles of Islamic investment funds and commonly applied structures.


2017 ◽  
Vol 4 (8) ◽  
pp. 657
Author(s):  
Ardian Dwi Bagus S ◽  
Muhammad Nafik Hadi Ryandono

The cooperation of sharia microfinance institutions that have a role and function of the build and develop potential and economic ability members in particular and the society in general to improve the economic and social welfare. The aim of this research is to find out the role of cooperation sharia financial services in economic empowerment of its members. The approach that is used is qualitative approach by case study as a strategy. In the technique of data collection using the techniques of interview directly to the related objects. This research indicated that the cooperative savings and financing sharia convenient Muamalah Berkah Sejahtera Surabaya has a role in the economic empowerment members through financial products by offering the financing products, with various desired model by its members and the most important thing is that these products are using the contract according to the Islamic Law.


2019 ◽  
Vol 1 (1) ◽  
Author(s):  
Pardan Syafrudin

The Common properties (community property) is an asset that the husband and wife acquired during the household lifes, which both of them is agree that after united through marriage bonds, that the property produced by one or both of them will be common property. It shows, that if there's an agreement between husband and wife before marriage (did not to unify their property), then the property produced both will not become a joint treasure. Thus, if a husband or wife dies, or divorces, then the property owned by both of them can be distributed in accordance with their respective shares, another case when the two couples are not making an agreement, then the property gained during marriage bonds can be divided into types of communal property. In Islamic law, this kind of treasure is not contained in the Qur'an or Sunnah. Nor in Islamic jurisprudence. However, Islamic law legalizes the existence of common property as long as it is applicable in a society and the benefit in the distribution of such property. In contrast to the positive law, this property types have been regulated and described in the Marriage Law, as well as the Islamic Law Compilations, which became the legal restriction in the affairs of marriage in force in Indonesia. In this study, the author tries to compile the existence of common property according to the Islamic law reviews and positive law.


ALQALAM ◽  
2017 ◽  
Vol 34 (1) ◽  
pp. 30
Author(s):  
Nur Hidayah

There has been a concern over a high unemployment rate among graduates of Islamic higher education and a low proportion of entrepreneurs in Indonesia. In fact, a high proportion of entrepreneurs is one of indicators of a country’s welfare. This has generated a question: to what extent do Islamic values cultivate entrepreneurial culture among its adherents? How to cultivate entrepreneurial culture in Islamic higher education? This paper will investigate this matter using a case study of Faculty of Islamic Law and Economics at Banten State Institute for Islamic Studies.  The paper argues that the curriculum at the faculty of Islamic Law and Economics has not been oriented towards building entrepreneurial culture. The curriculum consists of subjects to enhance the students’ competence and skills to prepare them as bachelors of syari`ah economics for the professions such as manager, lecturer, researcher, syari`ah auditor, etc, instead of preparing them for entrepreneurs who are capable to build his or her own business from the scratch.    To propose Islamic entrepreneurship study program at the FSEI of IAIN SMHB, it is important to have a strong political will not only from the internal IAIN but also higher authoritative body such as the Ministry of Religious Affairs to facilitate this from not only the accreditation process but also financial support. A further feasibility study needs to be undertaken to build its infrastructure such as qualified lecturers, appropriate curriculum structure, and recruitment student system. Since this field has a strong link with a ‘real sector’, there has been an urgent need to build cooperations with business sector to enable the students to undertake their apprentice and build their networks to facilitate their ability to develop their own business.     Keywords: Islam, entrepreneurship, entrepreneurial education.


ALQALAM ◽  
2013 ◽  
Vol 30 (1) ◽  
pp. 158
Author(s):  
Yusuf Somawinata

This article aims at describing the obseroance of wasiat wajibah (compulsory bequeathment) in the Islamic court of Banten, analyzing the provision of the substitute heir and adopted children in the Compilation of  Islamic Law (KHI). In addition, the ideal laws to manage the innheritance rules in Indonesia. This article is library research by using doctrinal approach and using case study and survey methods. The data was, then, analyzed by using analytical descriptive and analytical correlative methods. The result showed that the observance of wasiat wajibah in the Islamic court of  Banten employed by judges is by using the Mawali Hazairin’s Doctrine. The criteria of the adoption of substitute heir and adopted children in the KHI is the attempts of Ulama and many judgees junst in giving legal justice and certainty to the society.   Key Words: Islamic Inheritance Law, Compilation of Islamic Law, Islamic court of  Banten


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