scholarly journals The Theory of Interpretation in Solving Contemporary Legal Issues: With A Focus on the Instrument of Ijtihad

2018 ◽  
Vol 150 ◽  
pp. 05056
Author(s):  
Abdulrahman M.A.Albelahi ◽  
A. Ali ◽  
Faten Mohmed ◽  
Metwally Ali
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Legal Issues ◽  
Legal Interpretation ◽  
Way Of Life ◽  
Essential Question ◽  
Judicial Reasoning ◽  
The Law ◽  
Law And Legislation

Since the beginning, legal theory has concerned itself with the establishment of principles and precepts that govern the procedure of legal interpretation, from the initial stages of the judicial reasoning down to the promulgation of ruling and their implementation, Islam is a total way of life. Muslims are obliged to abide by the rules of Allah in every aspect of their lives, always and wherever they live. However, the actual rules of Allah as given in the Qur’an and the sunna are limited. The Qur’an contains only six hundred verses directly related to laws, and there are approximately two thousand hadiths. The function of interpretation is to discover the intention of the Lawmaker of the matter, therefore, interpretat primarily concerned with the discovery of that which is rot self-evident the objective of interpretation is to ascertain the intention c the Lawmaker with regard to what has been left unexpressed as a matter of necessary interference from the surrounding circumstances. Sometimes, the textual sources did not provide detailed guidelines in which to derive the law, and then the role of interpretation is important to determine the law. In Islamic law the role of Ijtihad undoubtedly important in order to meet new problems. But some of the Jurist contended that the role of Ijtihad had ended and we have to follow the rule that has been stated. An explanation given to this trend is that a point had been reached at which all essential question of law had been thoroughly discussed and further deliberation was deemed unnecessary. In Common law, man-made law and legislation are related to one another within a philosophy of law. Parliament makes law and it is the duty of the courts to give effect to them if properly enacted. While courts may rule that a particular statute or section is invalid for various reasons such as unconstitutionality, they cannot say, "We shall change this Act because it is not appropriate". That function belongs to Parliament (Wu Min Aun 1990: 120). So as in Islamic law, the Lawmaker is Allah S.w.t and the sacred text (Quran) is legislated due to His intention whereas Sunnah of the Prophet Muhammad is enacted due to the Prophet's intention. Therefore, Ulama of Usul Fiqh, in making any Ijtihad, they are du y bound to be guided by Quran and Sunnah.

The Muslim and the Law: A Brunei Experience

2017 ◽  
Vol 3 ◽  
Author(s):  
Zabaidah Haji Kamaludin
Keyword(s):  
Islamic Law ◽  
Critical Factor ◽  
Legal Issues ◽  
Core Element ◽  
The Core ◽  
Ideal System ◽  
The Law ◽  
Islamic Values

An Islamic system of governance is an ideal system, which is a tantalising objective for many Muslims but often times not achieved in practice. Countries may call themselves ‘Islamic’ but the core element of Islamicity, that of values such as compassion, equity and justice may not have breached the consciousness of their leaders and citizens. Sometimes it is individuals who act as the catalyst for sparking action. For a Muslim, it is his īmān that serves to light his conscience, and guiding him the dispensation of his everyday tasks within his organisation. This individualised īmān may at times serve as a small but critical factor tilting the different organisational functions of government towards integrations under an Islamic system of governance. This paper recounts the challenges of a Muslim engaging in legal issues in a non-Islamic context, seeking to help enable his organisation to undertake the role of incorporating non-Islamic law with Islamic values.

scholarly journals Position Replacement By Inheritee Who Refuses A Heritage According To Heir Civil Law Dan Islamic Heir Law

2018 ◽  
Vol 2 (2) ◽  
pp. 153-165
Author(s):  
Gibtha Wilda Permatasari ◽  
Yuliati Yuliati ◽  
Herman Suryokumoro
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Civil Law ◽  
Legal Issues ◽  
Comparative Approach ◽  
Legal Certainty ◽  
Inheritance Law ◽  
Research Journal ◽  
The Law

This research journal discusses legal issues relating to the substitution of places made by the heirs who previously rejected the inheritance which falls to him by comparison of the perspectives of civil inheritance law and Islamic inheritance law. Pursuant to Article 848 and Article 1060 of the Civil Code on the replacement of the place by the heirs who reject the inheritance and the notary's role as a general official in providing legal certainty to prevent the issue of inheritance according to the law of civil inheritance and the Islamic inheritance law. The purpose of this research is to know and to analyze whether or not the heirs who have rejected inheritance replace other heirs as well as to know the role of notary in giving legal certainty to prevent problems in the civil inheritance law and Islamic inheritance law. The research method used by the writer is the statue approach and comparative approach. Heirs who reject inheritance under civil law of inheritance cannot change place (plaatsvervulling) because the requirement of replacement of place according to the law of civil inheritance is derived from families of blood in the same degree and not reject the inheritance. The replacement of places in Islamic inheritance law is known as mawali however, Islamic law does not recognize the denial of inheritance only known in the law of civil inheritance.

The Role of Principles of Law in Legal Interpretation

2021 ◽  
Vol 39 (9) ◽  
Author(s):  
Valeriia K. Antoshkina ◽  
Myroslav B. Nikolenko ◽  
Vladyslav S. Oliinyk ◽  
Olena I. Romtsiv ◽  
Volodymyr S. Makarchuk
Keyword(s):  
Legal Interpretation ◽  
Present Stage ◽  
Legal Principles ◽  
Legal Science ◽  
Relevant Task ◽  
The Law ◽  
Law And Legislation

Complicating and improving legal relations naturally require improvements in the process of legal interpretation. Some theoretical provisions need further specification and development, taking into account the latest changes in law and legislation. Interpretation helps to eliminate contradictions, conflicts, and gaps in the law, so one should recognize it as the important and relevant task of legal science at the present stage. The article aims to study legal principles, outline their role in the process of legal interpretation, and clarify their relationship with the principles of legal interpretation.

scholarly journals عقد الزواج وما يتعلق به من الوسائل المستحدثة

2017 ◽  
Vol 17 (2) ◽  
pp. 175
Author(s):  
Fadlolan Musyaffa'
Keyword(s):  
Islamic Law ◽  
Legal Issues ◽  
The Internet ◽  
Direct Communication ◽  
Marriage Contract ◽  
The Law ◽  
Modern Tool

<p>A mujtahid has an important role in answering legal issues that arise in the community. His position is to replace the role of the prophet in exposing and explaining the law of God in the nash. This article attempts to discuss the terms of the Mujtahids according to the scholars of Islamic law and the possibility of reaching these conditions in the present. The majority of contemporary scholars allow the ceremony of marriage with modern means of direct communication, as well as through modern means such as computers and the internet that can mutually make marriage contract. Now, there is modern tool through a visual phone that can display images of all components that make contract who can listen to each other and see between the two people who perform the contract and witnessed both witnesses, then the contract is valid, because it has qualified and get along in the marriage contract.<br />---<br /><br />Seorang mujtahid memiliki peranan penting dalam menjawab permasalahan hukum yang muncul dimasyarakat. Karena pentingnya peran mujtahid tersebut, diperlukan syarat-syarat dalam berijtihad agar ijtihadnya benar dan sesuai kehendak Allah. Tulisan ini mencoba membahas syarat-syarat mujtahid menurut para ulama hukum Islam serta kemungkinan meraih syarat-syarat tersebut pada masa sekarang ini. Mengingat akad nikah memiliki spesifikasi yang khusus dan unik disbanding dengan akad-akad lain, maka terjadi khilaf antara ulama tentang kemungkinan akad melalui sarana komunikasi yang terbarkan. Mayoritas ulama kontemporer memperbolehkan akad nikah dengan sarana komunikasi modern langsung, maupun melalui sarana modern seperti komputer dan internet yang bisa saling melakukan akad nikah.Apalagi sekarang telah ditemuakan alat modern melalui telepon visual yang bisa menampilkan gambar semua komponen yang melakukan akad yang bisa saling mendengarkan suara dan melihat antar kedua orang yang melakukan akad serta disaksikan kedua orang saksi, maka akad tersebut adalah sah, karena telah memenuhi syarat dan rukun dalam akad nikah.</p><p> </p>

scholarly journals The inextricable entanglement of argumentation and interpretation in law

2017 ◽  
Vol 28 (4) ◽  
pp. 1087-1101
Author(s):  
Milos Markovic
Keyword(s):  
Conceptual Framework ◽  
Legal Theory ◽  
Legal Issues ◽  
Clear Distinction ◽  
Legal Interpretation ◽  
Contemporary Debate ◽  
The Third ◽  
History Of

At the basis of tireless efforts to explain the nature of law lies the question of how judges should decide cases. Therefrom arises a need for a theory that would clarify the role of the courts and, moreover, provide guidance to them on reaching judgments. The history of legal theory abounds with various attempts to offer a generally acceptable answer to the question raised. The fervor of debate and the perpetual dissatisfaction with offered solutions prompted the thought of untamable arbitrariness of judges. In the contemporary debate the significance of argumentation is particularly emphasized as a link of the court procedure which provides reasonableness and therewith justification and persuasiveness of the decision. Before going into the matter, I will indicate in broad strokes which areas of legal theory do argumentation and interpretation belong to. The purpose of setting a conceptual framework is to prevent losing sight of the whole as well as to limit the scope of discourse to a certain section of legal issues. The second part deals with the concept of argumentation in general and some specific features of the argumentation in law. The third part examines the role of legal interpretation and draws a clear distinction between the interpretation as a process and the interpretation as a result. At the end of the discussion I shall put forward a thesis that the interpretation as a process is argumentation, while the interpretation as a result is an argument in the justification of judgment.

scholarly journals Wartości w teorii prawa Jerzego Wróblewskiego

2018 ◽  
Vol 2 (2) ◽  
pp. 258-272
Author(s):  
Jerzy Leszczyński
Keyword(s):  
Legal Theory ◽  
Legal Culture ◽  
Legal Positivism ◽  
Legal Interpretation ◽  
Legal Certainty ◽  
Evaluation Practices ◽  
The Law ◽  
Sophisticated Version

The article presents the role of values and evaluation practices in Jerzy Wróblewski`s legal theory. An overview of the theory includes here the interpretation and the application of the law, in both of which Wróblewski shows the axiological choices made by a lawyer. These choices are only partly limited by the interpretative directives, those generally accepted in a legal culture. The author of the article describes the two ideologies (normative theories), distinguished by Wroblewski, of the legal interpretation (and of the application of the law), which are contradictory to each other as they refer to opposing values: legal certainty and flexibility of law. A third type of ideology, identified by Wróblewski refers to the value of rationality and tries to mitigate the contradictions of the previous two. Some similarities between Wróblewski`s legal theory and the theory of H.L.A.Hart may allow to treat him as the co-founder of a sophisticated version of legal positivism.

Maxims

2019 ◽  
pp. 654-669
Author(s):  
Donald R. Davis
Keyword(s):  
Islamic Law ◽  
Legal Interpretation ◽  
Legal Practice ◽  
Moral Foundation ◽  
Legal Principles ◽  
Legal Traditions ◽  
The World ◽  
The Law

This chapter examines the history and use of maxims in legal traditions from several areas of the world. A comparison of legal maxims in Roman, Hindu, Jewish, and Islamic law shows that maxims function both as a basic tools for legal interpretation and as distillations of substantive legal principles applicable to many cases. Maxims are characterized by their unquestionable character, even though it is often easy to demonstrate contradictions between them. As a result, legal maxims seem linked to the recurrent desire for law to have a moral foundation. Although maxims have lost their purchase in most contemporary jurisprudence and legal practice, categories such as “canons of construction,” “legal principles,” and “super precedents” all show similarities to the brief and limited collections of maxims in older legal traditions. The search for core ideas underlying the law thus continues under different names.

scholarly journals PREWEDDING PHOTO PROCESSION AND THE ROLE OF THE FAMILY IN THEM

2020 ◽  
Vol 10 (2) ◽  
pp. 246
Author(s):  
Aulil Amri
Keyword(s):  
Islamic Law ◽  
Religious Values ◽  
Religious Knowledge ◽  
The Family ◽  
Marriage Contract ◽  
The Law ◽  
Husband And Wife ◽  
As If

In Islamic law, pre-wedding photos have not been regulated in detail. However, pre-wedding photo activities have become commonplace by the community. It becomes a problem when pre-wedding is currently done with an intimate scene, usually the prospective bride uses sexy clothes and is also not accompanied by her mahram when doing pre-wedding photos. Even though there have been many fatwas and studies on the limits of permissibility and prohibition in the pre-wedding procession.The results show that the pre-wedding procession that is carried out by the community in terms of poses, clothes, and also assistance in accordance with Islamic law, the law is permissible. However, it often happens in the community to take photos before the marriage contract with scenes as if they are legally husband and wife and the bride's family knows without prohibiting, directing, and guiding them according to Islamic teachings. In this case the role of the family is very important, we as parents must understand the basis of religious knowledge and how to instill religious values in our children since childhood is the key to this problem dilemma.

scholarly journals MADZHAB HUKUM ISLAM

2016 ◽  
Vol 26 (1) ◽  
pp. 180-200
Author(s):  
Sheila Fakhria
Keyword(s):  
Islamic Law ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Law Schools ◽  
The Law

The school of law are determined by law and the period of time so that by jurists make legal interpretation based on the time and place. So at this time jurists are always reviewing the law that is based on the presence or emergence of various schools in the philosophy of law shows the struggle of ideas will not cease in the field of law. Similarly, the existence of Islamic law in a society that seeks to be grouped according typology of existing law schools in the philosophy of law.

scholarly journals PERAN SAYYIDAH ‘AISYAH DALAM PEMBENTUKAN HUKUM ISLAM BERWAWASAN GENDER

EGALITA ◽  
2012 ◽  
Author(s):  
Ahmad Izzuddin
Keyword(s):  
Social Welfare ◽  
Gender Inequality ◽  
Islamic Law ◽  
Middle Age ◽  
Early Age ◽  
The Family ◽  
The Law ◽  
Role Of Women ◽  
Law Construction

Islamic law and women are one of mostly debated discourses bycontemporary Islamic thinkers particularly those who are gender issuesproponents. That discourse grows due to the accuse towards Islam thatthis religion is the source of gender inequality for women through outmuslim world especially in education, fairness and domestic freedom aswell as social welfare in the family. The assumption is that Islamic law ismale-based law. Therefore, it is a need to explore the note on Islamic lawdevelopment which is perceived from the role of women in the early age oflaw construction not from the aspect of the thought of classical ulama inthe middle age. This paper tries to explore and to discuss mainly the role ofSiti Aisyah as the teacher and the transmitter of hadith as the foundation ofIslamic law construction to underline women’s position and contributionas the law maker that it will prove that Islamic law is not merely men-basedlaw as the assumption grows.

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