Part I Introduction, 2 Sources and Principles of Islamic Law

2020 ◽  
Author(s):  
Eisenberg David M
Keyword(s):  
Historical Perspective ◽  
Islamic Law ◽  
Evolutionary Process ◽  
Islamic Finance ◽  
Legal Systems ◽  
Entire Field ◽  
Legal Foundations ◽  
Legal Concepts ◽  
Point Of Departure ◽  
Broad Understanding

This chapter examines the sources and principles of Islamic law. A broad understanding of the sources and principles of Islamic law is prerequisite to an examination of the legal foundations of Islamic finance. Islamic law comprises a complex and vast body of doctrine that has taken shape in extremely varied circumstances for well over a millennium as part and parcel of an evolutionary process still vigorously underway. The chapter then describes the technical terminology employed by Muslim jurists across the entire field of Islamic law. All the technical terminology is in Arabic but exact or rough equivalents can be found in other legal systems. The chapter also looks at the legal concepts relevant to Islamic finance from a historical perspective as the point of departure for an exposition of the Islamic law of contract, for which they provide the conceptual underpinnings.

The Siyar — An Islamic Law Of Nations?

2007 ◽  
Vol 35 (1) ◽  
pp. 19-46 ◽  
Author(s):  
Anke Iman Bouzenita
Keyword(s):  
Case Studies ◽  
Islamic Law ◽  
Legal Order ◽  
Legal Systems ◽  
Western Literature ◽  
Law Of Nations ◽  
Legal Concepts ◽  
Methodological Aspects

AbstractThis article deals with an essential part of Islamic law usually referred to as siyar. It discusses the development of siyar in an Islamic context and in comparison to the development of the modern law of nations. It further follows up the evaluation of siyar in the Western literature and analyses recurring paradigms of categorisation used in this literature. The author discusses Kruse's (1979) approach to differentiate between an "Islamic" and a "Muslim" law of nations. As case studies of argumentative weaknesses and loopholes, the author scrutinizes the attempts to attribute siyar to a particular type of law of nations and to render it as a legal order of either personal or territorial validity. The article focuses on methodological aspects involved in presenting two independent legal systems as commensurable. The author concludes that a terminological transfer, be it with the intention of explaining Islamic legal concepts to a non-specialized reader, be it with the intention to reconcile between both systems, cannot do justice to either one of the legal systems.

Islamic Awakening and Its Role in Islamic Solidarity in Malaysia

2018 ◽  
Vol 29 (1) ◽  
pp. 98-125
Author(s):  
Saodah Abd. Rahman ◽  
Abu Sadat Nurallah
Keyword(s):  
Islamic Law ◽  
Evolutionary Process ◽  
Political Stability ◽  
Well Being ◽  
Islamic Education ◽  
Insurance Companies ◽  
Islamic Banking ◽  
Way Of Life ◽  
Youth Movement ◽  
Islamic Parties

The Islamic Awakening in Malaysia has brought about the consciousness of adopting and practicing the Islamic way of life. The process of implementing the principles of Islam is based on a gradual evolutionary process, rather than a drastic approach. Therefore, the selective implementation of Islamic law has been carried out relatively smoothly. For that reason, various institutions have been established ‒ such as, Islamic universities, Islamic banking and insurance companies, and other Islamic organizations and institutions. The case studies in this article related to Malaysia are: The Pan-Malaysian Islamic Party (PAS), Angkatan Belia Islam Malaysia – ABIM (Malaysian Islamic Youth Movement), and some Islamic institutions, which play important roles in the Islamic Awakening and solidarity in Malaysia. The PAS and ABIM are the prominent Islamic parties and movements, respectively, which can be regarded as the driving force behind the Islamic Awakening in Malaysia. Based on a tridimensional perspective ‒ that is, socioeconomic well-being and the strength of the expansion of Islamic education, and political stability ‒ this study highlights the accomplishment of Islamic Awakening in Malaysia.

An Evolutionary Process—The Federalization of Corporate Governance

2018 ◽  
Author(s):  
Marc I. Steinberg
Keyword(s):  
Corporate Governance ◽  
Historical Perspective ◽  
Evolutionary Process ◽  
Stock Exchanges ◽  
Federal Law ◽  
Sarbanes Oxley

This chapter provides an overview regarding the federalization of corporate governance as an evolutionary process. From this perspective, the chapter examines both state and federal law that impact corporate governance. As the chapter explains, from a historical perspective, the states emerged as the primary regulator of corporate governance. Today, Delaware has emerged as the preeminent state where publicly-held corporations elect to incorporate. Nonetheless, federal law, even from a traditional perspective, impacted corporate governance, such as the SEC’s shareholder proposal rule adopted over 75 years ago. With the enactment of the Sarbanes-Oxley Act of 2002, the Dodd-Frank Act of 2010, SEC rules adopted under the authority of these statutes, and the emergence of stricter substantive listing requirements mandated by the national stock exchanges, federal law principles are now firmly established.

Pearls From Bones: Relics, Chortens, Tertons and the Signs of Saintly Death in Tibet

Numen ◽  
1994 ◽  
Vol 41 (3) ◽  
pp. 273-324 ◽  
Author(s):  
Dan Martin
Keyword(s):  
Historical Perspective ◽  
Religious Studies ◽  
Religious Culture ◽  
Tibetan Buddhist ◽  
Devotional Practice ◽  
Cultural Pattern ◽  
Other Substances ◽  
Critical Links ◽  
Point Of Departure

AbstractAlthough there has been much work, in recent years, on the sacrum of Christianity, and some important studies have appeared on Buddhist relic cults and related facets of Buddhism, so far very little has been written on Tibetan Buddhist relics. This paper, while offering some material for a historical perspective, mainly seeks to find a larger cultural pattern for understanding the interrelationships of a complex of factors active in Tibetan religious culture. Beginning with problems of relic-related terms and classifications, we then suggest a new assessment of the role of the Terton ('treasure revealer'). Then we discuss 'miracles' in Tibet, and the intersection of categories of 'signs of saintly death' and relics. Much of the remaining pages are devoted to those items that fall within both categories, specifically the 'pearls' that emerge miraculously from saintly remains and images that appear in bodily or other substances connected with cremations. After looking at a number of testimonials on these miraculous relics, we examine the possibility that these items might be 'deceitfully manufactured', looking at a few Tibetan polemical writings which raise this possibility. In the conclusion, we suggest that there are some critical links between three spheres of Tibetan religiosity: 1. sacrum which are not relics, 2. relics, and 3. signs of sainthood. Finally, we recommend an approach to religious studies that takes its point of departure in actual practices, and particularly the objects associated with popular devotional practice.

scholarly journals نظرية المضاربة في الشريعة الاسلامية وتطبيقها في البنوك الاسلامية وتنمية الاقتصاد الإسلامي في إندونيسيا

2018 ◽  
Vol 6 (2) ◽  
pp. 124
Author(s):  
Abdurrohman Kasdi
Keyword(s):  
Islamic Law ◽  
Stock Exchange ◽  
Field Research ◽  
Islamic Finance ◽  
Islamic Banking ◽  
Islamic Banks ◽  
Economic Literature ◽  
Economic Concept ◽  
Price Differentials

<p><em>This article aims at explaining the theory of mudharabah in Islamic Sharia and its application in Islamic banking and the development of the Islamic economy in Indonesia. This study is based on field research. The method of analysis of the data used is the analysis of the content on the messages received from mudharabah in Islamic law and its application in Islamic banks and the development of the Islamic economy. The result of this research is that mudharabah is one of the most important and oldest forms of investment of funds in the Islamic Sharia. The fuqaha have agreed on the legality of mudharabah, and the evidence of legality, from the al-Qur’an, Sunnah, Ijma’, and Qiyas. The mudharabah formula in Islamic banks came as a legitimate alternative to traditional financing operations. It is one of the most important forms of Islamic finance and is thought to have been the cause of Islamic banks, which are said to be the Islamic financing formula. In Islamic banks, mudharabah is divided into absolute mudharabah and restricted mudharabah. The economic concept of mudharabah in the economic literature goes to the stock exchange and its predictions of market fluctuations. The investor may have to pay the price differentials in the case of lower prices. </em></p>

scholarly journals توظيف مقاصد الشريعة في أسلمة المعرفة القانونية

2014 ◽  
Vol 20 (78) ◽  
pp. 74-41
Author(s):  
عليان بوزيان
Keyword(s):  
Turning Point ◽  
Islamic Law ◽  
Civil Law ◽  
Normative Values ◽  
Legal Knowledge ◽  
Legal Systems ◽  
Legitimate Interests

تهدف هذه الدراسة إلى استثمار نظرية المقاصد الشرعية لإدراك جوهر القانون، ومحاولة التقريب والمصالحة بين نظرة الشريعة إلى المصالح الإنسانية المعتبرة، ونظرة النظم القانونية المقارنة إليها، وصولاً إلى مجموعة القيم المعيارية الحاكمة، في صياغة تشريع معياري يتناسب مع المجتمعات الإسلامية. وكشفت الدراسة عن الحاجة إلى تأسيس علم مقاصد القانون طلباً لمقاصد كلية قطعية يقْطَع بها الخلاف، فحيثما أسفر وجه الحق والعدل والمصلحة فثم مقصد القانون، ومن شأن ذلك فإن أسلمة المعرفة القانونية تمثل نقطة الانعطاف في إعادة بعث الجانب التشريعي من الشريعة، عن طريق تفعيل أدوات الفكر المقاصدي، واستثمارها في تحديد فلسفة التشريع الوضعي. This study aims to apply the theory of Islamic legal purposes to grasp the essence of the civil law, and try to converge and reconcile perspective of Sharia on the legitimate interests of people, and the comparative legal systems, to develop governing normative values that are necessary to  draft normative legislation, commensurate to Muslim societies. The study revealed the need to establish a discipline of the purposes of the civil law applied for the universal purposes that settle disagreement. Where truth, justice and interest are emerged the civil law will be there. Islamization of legal knowledge represents a turning point in reviving the legislative side of Islamic law, by using the tools of maqasid thought, to determine the philosophy of civil legislation.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

scholarly journals CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVES

2017 ◽  
Vol 25 (1) ◽  
Author(s):  
Kareem Adebayo Olatoye ◽  
Abubakri Yekini
Keyword(s):  
United Kingdom ◽  
Islamic Law ◽  
Islamic Finance ◽  
Unique Problem ◽  
Party Autonomy ◽  
The United Kingdom ◽  
Muslim Majority ◽  
The Law ◽  
Governing Law

The globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the Shari’ah may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected.

scholarly journals GUGAT CERAI: MEMBEBASKAN PREMPUAN DARI PENDERITAAN

QAWWAM ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 101-122
Author(s):  
Nurmala Fahriyanti
Keyword(s):  
Life Cycle ◽  
Social Development ◽  
Islamic Law ◽  
Human Life ◽  
Daily Basis ◽  
State Law ◽  
Legal Systems ◽  
Religious Law ◽  
The Family

In Mataram West Nusa Tenggara, people is lives are regulated on daily basis by religious law, traditional (adat) law and state law. To understand these complex cultural and religious processes as they affect women in particular, I will examine the issue of divorce, also known as sue divorce. This tipe of divorce is socially-sanctioned. I will focus my examination in Mataram, an city of Lombok West Nusa Tenggara. In Lombok society marriage constitutes an important part of the life cycle.  Someone is not considered an adult until marriage.  Marriage is not only united two individual, but also united two families. However this dream canot be realized over the long term.  If family problems arise and  there are no suitable solutions, people may choose to divorce. For instance, if a wife unable to fulfill her obligations as a wife, her husband can divorce her by verbal means alone, according to any of the three existing legal systems (religious customary or state law). By contrast, if her husband unable to fulfill her obligations as a husband his wife can divorce him in only one way by making an application to Islamic Court to do divorce. In marriage available successful couple builds the family that sakinah, mawaddah and warahmah. But then available also that unsuccessful and end with separate or divorce. Separate constitutes a thing that often happens deep good human life divorce the initiating from the husband and also divorce the initiating from the wife, that its cause islamic law puts attention that adequately significant to that thing. It can appear if understand about islamic law, undoubtedly will find both of previous thing and its terminological  islamic law. There is no divorce without started by marriage. But upon that aim not attained, therefore divorce constitutes last way out that must been sailed through. Divorce can't be done but there is grounds which corrected by religion, adat and state law. In islamic law, that divorce grounds experience developing according to social development. Basically islamic law establishes that divorce reason which is wrangle which really culminates and jeopardize the so called soul safety with “ syiqaq ”. Intention is if worried a couple its happening dispute (dispute not only means wrangle among husband or wife can also distinctive principle and opinion) therefore delegate a someone of its husband family and a someone of wife family. And if both of wife and husband will goodness and they can make resolution and look for the solution, but if there are suitable solution wife or husband can do divorce.

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