Chapter 8. A rhetorical approach to legal reasoning

Author(s):  
Maurizio Manzin
Keyword(s):  
2018 ◽  
Vol 11 (1-2) ◽  
pp. 19-42
Author(s):  
Khalid Shibib

As a humanitarian worker who was professionally involved for decades in crisis- and war-shaken countries, the author strove to understand the political, socioeconomic, and cultural factors contributing to conflicts. This contextualization, with a focus on Arab countries, confirmed what other thinkers found: the majority of political, economic, social, cultural, religious, and finally humanitarian crises in the Arab world are man-made and can be attributed to both extrinsic and intrinsic factors. Central to the latter appears to be a shared cultural construct that can be termed “Arab reason.” This essay tries to present information on various aspects of the crisis; to understand why reform efforts come so late and why are they are more difficult for Arabs than for other Muslims. It continues by looking at the knowledge systems that govern Arab reason and their evolution, including the decisive role of the religious knowledge system. From there, it proposes some reform ideas including a renewed legal reasoning process with the goal of a future-oriented, knowledge-based, and inclusive Arab Islamic vision. A pragmatic way forward could be an additional unifying eighth legal school (madhhab/madhāhib) to counter sectarian conflicts and violence. This essay is built on a targeted literature search and is not a comprehensive review of the growing literature generated by distinguished thinkers on various aspects of Arab Islamic identity.


2018 ◽  
Vol 12 (2) ◽  
pp. 281-296
Author(s):  
Alimuddin Alimuddin ◽  
Harjoni Desky

This study examines the reasons for Achehness Ulama of Dayah regarding plants and seeds that are subject to zakat. How the logic of thinking used by these ulama and their relationship with maqāṣid al-syarī‘ah (syariah legal purposes). This research focuses on the legal substance of zakat as intended by the Qur’an and Hadith, then it is analyzed from the side of maqāṣid al-syarī‘ah. The results of this study indicate that Acehnese Ulama argues that zakat of plants is only rice or a kind of staple food, on the grounds that it is a staple food of a country’s population, which has filling properties and can be stored and lasted. Other plants such as oil palm, cocoa, coffee, even though they are productive they are not zakatable wealth, because they do not meet these criteria. The legal reasoning of the Acehness Ulama uses the deductive method with the bayani (language) approach. On the other hand, the Acehness Ulama does not deny that the search for maqāṣid al-syarī‘ah can be done through in-depth study, but it is not yet certain that the obligations of zakat on productive plants can be formulated through this approach, so they reject it. According to them, the command of zakat can only be understood from the side of ta‘abbudī (worship approach), not through ta‘aqqulī (resourceful approach).


2015 ◽  
Vol 32 (1) ◽  
pp. 75-94
Author(s):  
Gubara Said Hassan ◽  
Jabal M. Buaben

The role of Islamic intellectuals is not confined to elaborating on the religious ideology of Islam. Equally important is their role in setting this religious ideology against other ideologies, sharpening and clarifying their differences, and thereby developing and intensifying one’s commitment to Islam as a distinct, divinely based ideology. Islam, as both a religion and an ideology, simultaneously mobilizes and transforms, legitimizes and preserves. It can be an instrument of power, a source and a guarantee of its legitimacy, as well as a tool to be used in the political struggle among social classes. Islam can also present a challenge to authority whenever the religious movement questions the existing social order during times of crisis and raises a rival power, as the current situation in Sudan vividly demonstrates. Throughout his political career, Hassan al-Turabi has resorted to religious symbolism in his public discourse and/or Islamic rhetoric, which could often be inflammatory and heavily reliant upon the Qur’an. This is, in fact, the embodiment of the Islamic quest for an ideal alternative. Our paper focuses on this charismatic and pragmatic religio-political leader of Sudan and the key concepts of his religious discourse: faith (īmān), renewal (tajdīd), and ijtihād(rational, independent, and legal reasoning).


2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.


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