scholarly journals TRADITIONIST-JURISPRUDENTS AND THE FRAMING OF ISLAMIC LAW

2001 ◽  
Vol 8 (3) ◽  
pp. 383-406 ◽  
Author(s):  
Christopher Melchert
Keyword(s):  
Islamic Law ◽  
Legal Reasoning ◽  
Ninth Century ◽  
History Of ◽  
The Law

AbstractThe traditionist-jurisprudents (fuqahā' ashāb al-hadīth) of the earlier ninth century C.E. proposed that Islamic law be inferred from hadith, reports of what the Prophet, his leading Companions, and the Followers had said or done, without significant resort to reason. Contradictions among hadith reports they either resolved by means of isnād comparison or simply let stand, refusing to define the law by their own preferences. Their adversaries the rationalistic jurisprudents (ashāb al-ra'y) also used hadith, but far less extensively and without significant use of isnād comparison to sort out the sound from the unsound. In the later ninth century, rationalistic jurisprudents took up many of the forms formerly peculiar to the traditionist-jurisprudents, especially formal dependence on hadith and isnād comparison to sort the sound from the unsound. Traditionist-jurisprudents in turn accepted the need for separate expertise in legal reasoning besides hadith criticism. Although some developments took place independently of them, the history of Islamic law across the ninth century cannot be written without reference to the traditionist-jurisprudents and their strident advocacy of hadith.

The Continuation of Ijtihād

2021 ◽  
Vol 60 (1) ◽  
pp. 31-51
Author(s):  
Mubasher Hussain
Keyword(s):  
Eighteenth Century ◽  
Islamic Law ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Law Schools ◽  
The West ◽  
Legal Thought ◽  
Positive Law ◽  
History Of ◽  
The Law

This article deals with legal thought of Shāh Walī Allāh, an outstanding religious thinker of eighteenth-century Muslim India, who emerged as one of the most prominent proponents of independent legal reasoning (ijtihād). According to Walī Allāh, ijtihād has always been a communal duty and thus it stipulates the existence of jurists capable of independent legal reasoning (mujtahids) in all ages. His thought-provoking response to the issues concerning ijtihād and taqlīd has led to a great deal of attention from scholars in both the East and the West. However, there remains the controversy of whether he advocated for an independent ijtihād after the eponyms of the law schools or not. This study attempts, analyzing Walī Allāh’s views on the juristic typology maintained by Sunnī jurists, to show how Walī Allāh argued for the continuity of ijtihād, both partial and independent, throughout the history of Islamic law. The author concludes that Walī Allāh believed not only in the possibility of absolute ijtihād (al-ijtihād al-muṭlaq) or ijtihād through legal theory (fī ’l-uṣūl) and positive law (wa ’l-furū‘), after the eponyms of the juristic schools, but also in the existence of such absolute jurists throughout Islamic centuries.

scholarly journals Konsep Talak Menurut Ibnu Qayyim Al-Jauziyyah (Analisis Waktu Dan Jumlah Penjatuhan Talak)

2020 ◽  
Vol 20 (1) ◽  
pp. 95
Author(s):  
Jamhuri Jamhuri ◽  
Zuhra Zuhra
Keyword(s):  
Family Relationships ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Foster Family ◽  
History Of ◽  
The Law ◽  
The Right

Talak merupakan hukum yang disyariatkan bagi satu pasangan yang tidak mungkin lagi membina hubungan keluarga dengan baik. Peluang talak ini dapat dipilih oleh suami dengan memperhatikan tata cara dan prosedur yang sesuai dengan hukum Islam. Terdapat beberapa hukum yang ulama tidak padu dan berbeda pendapat, khususnya mengenai konsep talak dilihat dari sisi waktu dan jumlah penjatuhannya. Penelitian ini henda mengkaji pendapat Ibn Qayyim. Masalah yang didalami adalah bagaimana pandangan Ibnu Qayyim al-Jauziyyah terhadap konsep dan pengaruh hukum talak syar’i dilihat dari segi waktu dan jumlah penjatuhan talak, dan bagaimana metode istinbaṭ yang ia gunakan. Penelitian ini termasuk penelitian pustaka, data yang terkumpul dianalisis dengan cara analisis-deskriptif. Hasil penelitian menunjukkan bahwa menurut Ibn Qayyim al-Jauziyyah, konsep talak secara umum ada dua bentuk, yaitu talak dari segi waktu dan dari segi jumlah. Dari segi waktu, talak dilakukan saat isteri suci dan tidak digauli saat suci tersebut. Pengaruh suami yang menceraikan isteri saat haid dan telah digauli, itu diharamkan dan talak tidak jatuh. Dari segi jumlah, hak talak suami hanya ada tiga. Tiga jumlah hak talak tersebut digunakan secara bertahap, tidak bisa digunakan sekaligus. Pengaruh suami yang menceraikan isteri dengan talak dua atau tiga sekaligus, talak yang jatuh hanya dipandang satu kali. Adapun dalil yang digunakan Ibn Qayyim yaitu QS. al-Ṭalāq ayat 1, QS. al-Baqarah ayat 229, QS. al-Baqarah ayat 230, dan QS. al-Nūr ayat 6. Adapun riwayat hadis di antaranya hadis dari Nafi’ riwayat Abī Dāwud, dari Sa’di bin Ibrahim riwayat Muslim, dari Abdullah bin Ali bin Sa’ib riwayat Abī Dāwud, dan dari Ibn Wahab riwayat HR. Nasā’i. Metode yang digunakan Ibn Qayyim yaitu bayanī dan metode istiṣlāḥī. Talak is a law prescribed to one spouse that is no longer likely to foster family relationships well. The chance of this Talak can be chosen by the husband taking into account the ordinances and procedures according to Islamic law. There are some laws that scholars do not mix and differ, especially regarding the concept of Talak seen from the time and number of the allotment. This study has studied Ibn Qayyim's opinion. The issue in the matter is how Ibn Qayyim al-Jauziyyah's view of the concept and influence of the law is seen in terms of time and the number of a bailout, and how the Istinbaṭ method he used. This research includes the research of libraries, the collected data is analyzed in a descriptive-analysis way. The results showed that according to Ibn Qayyim al-Jauziyyah, the concept of Talak, in general, there are two forms, namely Talak in terms of time and in terms of number. In terms of time, the Talak was performed during the Holy Wife and not in the holy moment. The influence of the husband who divorced the wife during menstruation and has been held, it is haraam and the Talak does not fall. In terms of numbers, the right to the husband is only three. The three total rights of the Board are used gradually, not to be used at once. The influence of the husband who divorced the wife with a two or three talak at once, a talak that fell only considered one time. The evidence that Ibn Qayyim used is QS.  al-Ṭalāq verse 1,  Qs. Al-Baqarah verses 229,  Qs. Al-Baqarah verses 230, and  Qs. Al-Nūr verse 6. The history of Hadith includes hadith from  Nafi ' History of Abī Dāwud,  from Sa'di bin Ibrahim  Muslim history, from Abdullah bin Ali bin Sa'ib  abī dāwud history, and Ibn Wahab narrated by the history of the Christian. The method used Ibn Qayyim was bayanī and the method Istiṣlāḥī. 

scholarly journals Review Of Islamic Law To The Use Of Article 28 Subsection 2 About Speech Hatred And Defamation (UU Number 19 AT 2016 Amendments to UU Number 11 at 2018)

2019 ◽  
Vol 5 (2) ◽  
pp. 355-368
Author(s):  
Arbanur Rasyid
Keyword(s):  
Social Media ◽  
Human Rights ◽  
Criminal Law ◽  
Islamic Law ◽  
Hate Speech ◽  
State Institutions ◽  
History Of ◽  
The Media ◽  
The Law ◽  
The Many

Hate Speech  has recently become a warm conversation, not only in the media, but has begun to be discussed in scientific forums as a result of the many characters who are ensnared by hate speech due to making uploads in Social Media that is considered insulting to other people or state institutions by making a statement containing elements of hate speech in accordance with the criminal threat in Article 28 paragraph 2 of Law number 19 of 2016 amendment to law number 11 of 2008. Long before the law talks about hate speech, Islam through the Qur'an speaks a lot about how God denounces the actions of people who insult, berate, speak ill of others and make hoaxes, and Allah threatens sin for those who do it . Even in the history of Islam through the Prophet Muhammad had given a caning to people who make hoaxes, and the sentence in the Islamic criminal law is called Ta'zir, thus Islam is very careful and highly respects the human rights of a person including in protecting the soul and someone's honor

Menggagas Fikih Media Sosial

2019 ◽  
Vol 13 (1) ◽  
pp. 65-81
Author(s):  
Khariri Khariri
Keyword(s):  
Social Media ◽  
Social History ◽  
Industrial Revolution ◽  
Islamic Law ◽  
Legal Provisions ◽  
Negative Findings ◽  
History Of ◽  
The Law ◽  
Use Of Social Media ◽  
The Times

The development in the field of information technology in the era of industrial revolution 4.0 was so rapid. However, there are many negative findings from the use of social media, such as hoaxes, utterances of hatred, slander, etc. This requires a more contextual study of Islamic law (fiqh) and is able to answer what is the demand of the times, especially the phenomenon of social media. In carrying out the formulation of Islamic law, there are two methods of reasoning used, namely normative-deductive and empirical-inductive, so that the resulting laws can be in accordance with the demands of the community. Therefore, the idea of social media fiqh is to make an effort to find the maqāṣid al-syarī’ah (legal purpose) in the use of social media. By using the theory of sadd al-żarī’ah analysis, this study sought formulation of Islamic law in order to be a solution in the times. This theory is used to explore various problems that have occurred in the development of communication on social media. In addition, this study attempts to trace the exclusion (istinbāṭ) of the law in formulating the fiqh of social media with the Uṣūl al-Fiqh approach and the social history of Islamic law. The work of this research is inseparable from the two legal provisions that have been formulated before, namely the MUI fatwa on Social Media and the Law of Information and Electronic Transaction.

A Prolonged Abrogation? The Capitulations, the 1917 Law of Family Rights, and the Ottoman Quest for Sovereignty during World War 1

2020 ◽  
Vol 52 (2) ◽  
pp. 245-260
Author(s):  
Kate Dannies ◽  
Stefan Hock
Keyword(s):  
Ottoman Empire ◽  
Islamic Law ◽  
Family Law ◽  
World War ◽  
Women And Gender ◽  
The Family ◽  
French And English ◽  
History Of ◽  
The Law ◽  
And Gender

AbstractThe 1917 promulgation of a new Ottoman family law is recognized as a landmark moment in the history of Islamic law by scholars of women and gender in the Middle East. Yet the significance of the 1917 law in the struggle over religious jurisdiction, political power, and Ottoman sovereignty has been overlooked in the scholarship on both Ottoman legal reform and World War 1. Drawing on Ottoman Turkish, German, French, and English sources linking internal interpretations of the law and external reactions to its passage, we reinterpret adoption of the family law as a key moment in the geopolitics of World War 1. We demonstrate that passage of the law was a critical turning point in the wartime process of abrogating the capitulations and eliminating the last vestiges of legal extraterritoriality in the Ottoman Empire. The law is situated in its wartime political context and the geopolitical milieu of larger Europe to demonstrate that, although short-lived, the 1917 family law was a centerpiece of the wartime struggle to define extraterritorial rights of the Ottoman Empire, the Great Powers, and their protégés within the empire.

scholarly journals VISUALISASI NABI SAW DALAM FILM PERPEKTIF HUKUM ISLAM

2018 ◽  
Vol 8 (1) ◽  
pp. 92
Author(s):  
Atik Fikri Ilyas ◽  
Dini Indah Wulandari
Keyword(s):  
Islamic Law ◽  
Common Thread ◽  
History Of ◽  
Pros And Cons ◽  
The Law

<p><em>This paper describes the law of visualization of the Prophet Muhammad in the film. Progress of the era demands the contextualization of Islamic teachings, including educational entertainment. Some parties the presence of films that take the theme of Islam becomes a necessity. Including the theme of the film about the history of the Prophets, up to the Prophet Muhammad SAW. Because it appears the pros and cons of visualization of the Prophet SAW in the film. This paper highlights the problematic. It is hoped that this paper will become a common thread for the visualization of the Prophet (s) in the film can be seen comprehensively from the view of Islamic law. For the next can be a consideration to take an attitude over the visualization of the Prophet in the film.<strong></strong></em></p>

scholarly journals Penerapan Metode Istihsan Pada Bidang Muâmalah Mâliyyah (Hukum Ekonomi Syariah)

2021 ◽  
Vol 21 (1) ◽  
pp. 68
Author(s):  
Panji Adam
Keyword(s):  
Data Collection ◽  
Research Method ◽  
Islamic Law ◽  
Secondary Data ◽  
Literature Study ◽  
Collection Method ◽  
Economic Law ◽  
History Of ◽  
The Law

Istihsan is one of the ijtihad methods disputed by the scholars ushul fiqh, although in reality, all scholars use it practically. The establishment of the law by istihsan method is widely carried out by scholars among the Hanafiyyah and Malikiyyah so that in the history of ushul fiqh, the Hanafiyyah are known as the group that uses istihsan as one of the methods of istinbâth al-ahkâm (determination of the law). Imam Shafi'i is a cleric who rejects istihsan as a method of determining Islamic law. But in practice Imam Shafi'i also uses istihsan as a method of determining Islamic law. The science of ushul fikih has a significant role in contributing to the existence of Islamic law, especially in the field of Sharia economic law. Research method conducted based on normative juridical approach, The specification of research used is analytical descriptive, The type of data used in this research, namely secondary data, data collection method used is literature study and analysis of secondary data that is qualitative. The results showed that istihsan is one of the methods of istinbâth al-ahkâm, which can be used as an argument and a proof of syara' and serves in determining the validity of an agreement / transaction in the field of Sharia economic law.

scholarly journals Epistemologi Tasawuf dalam Pemikiran Fiqh Al-Sya‘Rânî

ULUMUNA ◽  
2017 ◽  
Vol 14 (2) ◽  
pp. 249-270
Author(s):  
Miftahul Huda
Keyword(s):  
Islamic Law ◽  
Legal Reasoning ◽  
Fundamental Aspect ◽  
Islamic Thought ◽  
The Law ◽  
Theory Of Law

In the study of Islamic law, epistemology constitutes a fundamental aspect of the law upon which the legitimate concept of the law is based. Epistemology becomes the root of debates regarding the truth of legal reasoning among Muslims who often made a truth clam about their own superior episteme. This causes discrepancies amongst them. This dispute was what al-Sya‘rânî found in his time. As a famous jurist, he sought to resolve it and offered a new theory of law. He contends that the arguments underlying the debates about the epistemology of Islamic law flawed. He wants to demonstrate that the arguments do not fit into the tradition of Islamic thought. This study examines al-Sya‘rânî’s thought in the epistemology of Islamic law. It discusses four issues: the valid path to the knowledge about shari’a, kashf as a source of knowledge, the path to the kashf, and the position and relation of reason, tradition and intuition in Islamic law.

scholarly journals HISTORISITAS DAN SUMBER DALIL UṢUL FIQH SHI’AH

2019 ◽  
Vol 4 (1) ◽  
pp. 30-45
Author(s):  
Aspandi Aspandi
Keyword(s):  
Islamic Law ◽  
Legal Studies ◽  
History Of ◽  
The Law

In the history of the development of Islamic law, the existence of fiqh is one of the sciences that has given birth to a variety of methodologies in Islamic legal studies. Broadly speaking, the existence of fiqh proposals can be represented by the presence of Sunni and Shi'a fiqh proposals. As a theological group in Islam, Shi'ah has a different concept of fiqh from Sunni. This research is descriptive in nature, providing an explanation of the history of the development of shia fiqh, law in the perspective of shia, the propositions of shia fikh, and Istinbat in the perspective of shia. The conclusions from this study, that the Shi'a fiqh proposal is divided into two groups, namely Akhbariyyun and Uṣuliyyun. In the process of determining the law, the Akhbariyyun group returned the matter to the Qur'an and Sunnah based on the determination of their Imams. The Akhbariyyun group holds that only their imams have the authority of ijtihad to establish laws based on the Qur'an and Sunnah. As is known, scholars' Shi'ah call Dalil al-Qur'an, Sunnah, Ijma, and ‘Aql as the proposition Ijtihadi. Thus it can be said that Uṣul Shi’ah Akhbariyyun is; Al-Kitab, namely al-Qur'an, Sunnah and words, deeds, and taqrir of the Imam. The Uul Uṣuliyyun group, namely; Al-Kitab, Sunnah, and the words, deeds, and taqrir of the Ulema and Ijtihad which in their terms are called the proposition ‘Aql.

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