scholarly journals Islamic Law, Slavery, and Feelings

Hawwa ◽  
2021 ◽  
pp. 294-313
Author(s):  
Cristina de la Puente
Keyword(s):  
Islamic Law ◽  
Tenth Century ◽  
Point Of View ◽  
Legal Literature ◽  
Legal Document ◽  
Legal Justification ◽  
Legal Arguments ◽  
Female Slave ◽  
Female Slaves

Abstract This article studies a fourth/tenth-century notarial model to limit and place conditions on (istirʿāʾ) the manumission of an unruly and bad-tempered female slave. The text is part of al-Wathāʾiq wa-l-sijillāt, a notarial manual compiled by Cordoban scholar Ibn al-ʿAṭṭār (d. 399/1009), the earliest edited Andalusi work of this genre. Although it is part of a chapter on slavery and, more specifically, of a section dedicated to the manumission of slaves, it is not a generic notarial text dealing with the manumission of female slaves. The document is not a manumission form, but one that complements and limits a manumission; in fact, its aim is to impede or overturn the process. The article studies this notarial model in three different contexts: (1) Andalusi kutub al-wathāʾiq, (2) Mālikī legal literature on slavery and (3) notarial model reservation testimonies. Even if, at first glance, it appears to be an unusual legal document, when analysing other Mālikī sources we observe that the text is part of a well-documented tradition with widely accepted legal justification. This model is nevertheless exceptional from a procedural point of view because its legal arguments are based on feelings and refer specifically to the slave’s personality, temperament and behaviour as the factors that motivated the legal act.

The Paradox of the Female Slave Body in the Islamic Legal System: The Cases of Morocco and Sudan

Hawwa ◽  
2011 ◽  
Vol 9 (1-2) ◽  
pp. 215-233
Author(s):  
Ahmad A. Sikainga
Keyword(s):  
American South ◽  
The Body ◽  
Cultural Codes ◽  
Power And Control ◽  
Slave Women ◽  
The American South ◽  
Female Slave ◽  
Female Slaves ◽  
Relations Of Power ◽  
And Control

AbstractThis chapter is concerned with the way in which Muslim jurisprudence dealt with the body of female slaves in two Muslim societies: Morocco and the Sudan. While the depiction and the representation of the slave body have generated a great deal of debate among scholars working on slavery in the New World, this subject has received little attention amongst both Islamicists and Africanists. The literature on slavery in the American South and in the Caribbean has shown that the depiction of the slave body reveals a great deal about the reality of slavery, the relations of power and control, and the cultural codes that existed within the slave societies. The slave physical appearance and gestures were used to distinguish between the slaves and free and to justify slavery. Throughout the Americas slaves were routinely branded as a form of identification right up to the eighteenth century. Although the body of the slaves from both sexes was subjected to the same depiction, the treatment of female slaves deserves further exploration. As many scholars have argued, slave women suffer the double jeopardy of being both a slave and a woman. Moreover, the body of the female slave in Muslim societies is of particular significance as many of them were used for sexual purposes, as mistresses and concubines. The chapter shows that the reproductive role of female slaves became a major justice issue, particularly in their struggle for freedom.

Fratricide in Ottoman Law

Belleten ◽  
2018 ◽  
Vol 82 (295) ◽  
pp. 1013-1046
Author(s):  
Ekrem Buğra Eki̇nci̇
Keyword(s):  
Ottoman Empire ◽  
Islamic Law ◽  
Early Period ◽  
Point Of View ◽  
Potential Outcomes ◽  
Legal Principles ◽  
Legal Evidence ◽  
Political Tradition ◽  
Legal Texts

This paper considers fratricide in the Ottoman Empire from the Islamic/ Ottoman Law viewpoint. The established Turkish political tradition, which is based on the fact that the ruling power is a common patrimony of the members of the dynasty, gave rise to disastrous results in the early period of the Ottoman Empire. Since a strict succession system was not imposed during that early period of the Ottoman State, it would be the destiny of a shāhzādah (prince) which would determine his fate in becoming the next sultan. This resulted in infighting amongst the shāhzādahs. Revolting against the sultan or even planning to revolt are crimes according to Islamic/Ottoman law. The execution of those members of the dynasty who had not taken part in a revolt was legislated by the "Code of Sultan Mehmed the Conqueror," which was based on the sovereign right of the sultan accorded by Islamic Law (Orfi Hukuk). Relying on the principle of maslaha (common benefit) in Islamic law, some of the Ottoman scholars permitted fratricide as well. According to this principle, when facing two potential outcomes, the lesser of two evils is preferred. Some of the modern researchers consider this justification invalid. According to them, the execution of shāhzādahs who have not taken part in a revolt is politically correct, but contrary to Islamic law. The main contribution of this paper is to deal with the fratricide from the point of view of Islamic law by utilizing traditional legal texts and to addess to underlying Islamic legal principles behind fratricide application and what legal evidence the 'ulemā (Ottoman scholars) based their judgment on.

scholarly journals Collecting Fees for Safekeeping of Collateral: Rules and Applications in the Contemporary Islamic Financial Institutions

2020 ◽  
Vol 9 (1) ◽  
pp. 50-53
Keyword(s):  
Financial Institutions ◽  
Islamic Law ◽  
Market Price ◽  
Point Of View ◽  
Actual Cost ◽  
Islamic Banks ◽  
Maturity Date ◽  
Islamic Financial Institutions

The study aims to examine the Shari’ah legality of whether pledgor or pledgee should take care of collateral (marhun) during the period of the loan. Moreover, the study seeks to provide possible applications for the pledge (rahn) and clarify Shari’ah rules for each application. Malaysian Islamic banks apply pledge products by offering loans (qardh hasan) to the customers and requesting gold assets as collateral against a loan. The banks charge safekeeping fees to keep the gold until the maturity date of the loan. This practice combines loan and sale contracts in a single transaction. Accordingly, the study seeks to evaluate this practice from an Islamic point of view. Islamic law categorizes loans under charity contracts while the sale is categorized under contracts of exchange (mu’awadhat). The nature of the two contracts is different. Therefore, the study examines categories that combine loans and contracts of exchange in one transaction. The results reveal that it is not permissible for the pledgee to charge fees higher than market fees for the keeping of collateral. Charging fees that are higher than the market price is considered riba. According to Shari’ah rules, any kind of benefit derived from a loan is riba and thus it is prohibited. However, charging fees that are comparable to the market price and cover the actual cost for safekeeping of collateral is permissible. According to Islamic Fiqh Academy resolutions and AAOIFI standards, Islamic banks may charge fees for safekeeping of gold collateral considering that fees should be to the market fees and should only cover actual expenses.

scholarly journals MAKING THE CONTENTS OF LETTERS IN THE NOTARIS IN ISLAM'S LEGAL PERSPECTIVE

2017 ◽  
Vol 4 (2) ◽  
pp. 234
Author(s):  
Tubus Tubus
Keyword(s):  
Islamic Law ◽  
Field Research ◽  
Secondary Data ◽  
Point Of View ◽  
Primary Data ◽  
Legal Perspective ◽  
The Future ◽  
The Will ◽  
The Ideal ◽  
The Way

This paper aims to examine the making of the contents of wills examined from the point of view of Islamic law, in practice the reality in the lives of many people who have not heed the word basmallah as an incantation in the contents of the will for the followers of Islam. In this study using sociological juridical method, where the primary data obtained directly from field research, while secondary data obtained from the literature. The results obtained that the way of making the contents of the will and the absence of public legal awareness is optimal for the making of the contents of wills in accordance with Islamic law. And there are still weaknesses in the Making and Implementation of the contents of the current will, when the testament is oral, namely: The absence of the sacred intention or the noble intention of the collector must not necessarily occur; unsecured rights of the recipient, in the event of any problems of the future heirs of the pewasiat; there is a difficulty of proof in the absence of witnesses, when the will is brought before the Court. Law renewal in the making of the contents of the will in the presence of a notary in the perspective of Islamic law are: the reconstruction of its value, the Ideal Formation of the Will, the testament is done in writing witnessed by two witnesses and before the Notary. Ideal Construction Format of Testament Creation. The testament is written in the presence of two witnesses or in the form of a Deed or a Notary Deed. At the head of the will or the Deed or Notarial deed is included a sentence “Basmallah”.

scholarly journals Istiḥsān Dalam Madhhab Shāfi‘ī: Tinjauan Atas Kasus Mustathnayāt Madhhab Shāfi‘ī Perspektif Istiḥsān Madhhab Hanafī

2019 ◽  
Vol 16 (2) ◽  
pp. 459-478
Author(s):  
Abdul Mun'im Saleh
Keyword(s):  
Islamic Law ◽  
Point Of View ◽  
Legal Decision ◽  
Way Of Thinking

Istiḥsān is a dalīl (source and method) of Islamic law validated by the Hanafi school. Al-Shafi’i strongly rejected istiḥsān (juristic preference) and considered those who practice it as trying to compete with God as the Ultimate Authority and taking a careless decision. However, the istiḥsān way of thinking in the Shafi’i school is not uncommon but is considered valid. In the discipline of al-qawa’id al-fiqhiyah (Islamic legal maxims), the existence of mustathnayat (exceptions) cases with istithna’ (exception) method is showing istihsan method. This research compares mustathnayat/exception cases in qawa’d al-fiqhiyyah in Shafi’i madhhab and istihsan in Hanafi madhhab. The origin of the legal decision of exception in mustahnayat is judged from istihsan’s point of view. This research accepts that mustathnayat cases in Shafi’i madhhab result from thinking methods like istihsan in Hanafi madhhab in all aspects (its reality, method, and purpose).Istiḥsān adalah fasilitas dalīl shar’ī milik madhhab Ḥanafī. Al-Shāfi’ī dengan keras menolak istiḥsān dan melukiskan orang yang mempraktekkannya sebagai menyaingi Tuhan sebagai pemegang otoritas hukum dan mengambil keputusan sembarangan. Akan tetapi di dalam madhhab Shāfi’ī sendiri cara berfikir semacam istiḥsān itu sebenarnya bukan hal yang asing. Dalam disiplin ilmu al-qawā’id al-fiqhīyah, keberadaan kasus-kasus mustathnayāt dengan langkah-langkah istithnā’ menampilkan cara kerja istiḥsān. Penelitian ini mencoba membandingkan kasus-kasus mustathnayāt dalam ilmu al-qawā’id al-fiqhīyah milik madhhab Shāfi’ī dengan istiḥsān milik madhhab Shāfi’ī. Seluk beluk keputusan hukum eksepsi dalam bentuk mustathnayāt itu ditilik dari sudut pandang istiḥsān. Penelitian ini membenarkan bahwa kasus-kasus mustathnayāt madhhab Shāfi’ī adalah hasil dari metode berfikir sebagaimana istiḥsān dalam madhhab Ḥanafī, baik hakikatnya, metodologinya maupun tujuannya.

Treatment of silence as misrepresentation in contracts

2018 ◽  
Vol 60 (1) ◽  
pp. 69-78
Author(s):  
Ridoan Karim ◽  
Imtiaz Mohammad Sifat
Keyword(s):  
Best Practices ◽  
Islamic Law ◽  
Common Law ◽  
Point Of View ◽  
Fine Tuning ◽  
Content Type ◽  
Secondary Sources ◽  
Contractual Obligation ◽  
Contractual Obligations ◽  
Further Development

Purpose This paper aims to provide a comparative discussion on silence as a misrepresentation in contractual obligations between common law and Islamic law. The objective of this paper is to – from a legal pluralism point of view – highlight the contrasts between the two traditions and provide recommendations for best practices to achieve fairness and equity among the contracting parties. While common law does not treat silence as conscious misrepresentation, in Islamic law, silence does not constitute affirmative will. This has repercussions for the contracting parties because if future disputes arise, the aggrieved party in Islamic law reserves the option to rescind or nullify the contract – an opportunity not afforded by common law. We have discussed and analyzed the implementations of the different contractual terms, such as fraud, misrepresentation, trickery and deception in relation with Islamic law principles and common law practices. This research is an effort to draw the attention for further development in both Islamic law and common law practices on contractual obligation. The notion of misrepresentation – subset of a broader gamut of fraud – is arguably nebulous in Islamic literature as well. We delve into these nuances and provide examples both from common law and Islamic law precedents and provide recommendations for reform in both traditions. Design/methodology/approach This paper operates under qualitative methodological framework and uses secondary sources for analysis. Sources include journal databases, review of cases, classical/medieval Islamic scripts, etc. Findings This paper provides a general comparative study between common law’s principle and practice and Islamic law’s principle to forge a better understanding of fine-tuning existing practice and contribute to the debate on determining the best practices to unify international trade and custom exercise. Common law principle, obviously, holds a historical and traditional reputation as those principles are derived from long years of practice and judicial interpretation. Such historical legal system should accommodate fresh ideas in their repertoire and welcome novel ideas which would positively influence its own practice. This paper affords the freedom to the reader to interpret which general principle is acceptable in terms of contractual obligation. Originality/value Previous works exist on the issue of misrepresentation. However, those are mostly explanations of fraud and deceit in Islamic law or common law. The treatment of silence as affirmative will is seldom touched upon. To the authors’ knowledge, this is the first attempt at contrasting the treatment of silence in common and Islamic law. They have also advocated pluralistic practices and argued for legal reform whereby both traditions can benefit from each other.

Analisis Hukum Islam dan Undang-Undang No. 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik terhadap Jual Beli Data Supplier di Agen Fashion

2020 ◽  
pp. 75
Author(s):  
Nur'aeni Nasifah ◽  
Siska Lis Sulistiani ◽  
Yayat Rahmat Hidayat
Keyword(s):  
Data Collection ◽  
Qualitative Method ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Secondary Data ◽  
Point Of View ◽  
Supplementary Data ◽  
Literature Study ◽  
Face To Face

Abstract. Sale and purchase is transaction that often done by individual or group because there is a transfer of ownership between goods and assets. In practice, sale and purchase is not only done by face to face but also can be done online, as in the case of the sale and purchase of suppliers data at Agen Fashion. This study aims to find out how the transaction practice is and how Islamic law and ITE Law point of view are, whether it is accordance to the laws or not. This research uses qualitative method with normative juridical approach and literature study. The main sources in this study are secondary data that support this research, such as Alquran, Hadith, and the ITE Law. The interviews as data collection techniques are conducted as supplementary data. The analytical method used is descriptive analysis. The results of this study are the transaction is not  accordance with the terms of sale and purchase in Islamic law because there is a lack of clarity (gharar) on the quality of the object and is not accordance as well as the clause no. 9 of the ITE Law because the seller did not explain the object completely.Keywords: Sale and Purchase, Islamic Law, ITE Law, GhararAbstrak. Jual beli merupakan bentuk transaksi yang sering dilakukan oleh tiap individu atau kelompok karena dalam jual beli terdapat perpindahan kepemilikan antara barang dan harta untuk memenuhi kebutuhan hidup. Pada praktiknya, jual beli tidak hanya dilakukan secara bertatap muka melainkan dapat dilakukan secara online, seperti halnya pada jual beli data supplier di Agen Fashion. Penelitian ini bertujuan untuk mengetahui bagaimana praktik jual beli data supplier di Agen Fashion serta bagaimana hukum Islam dan Undang-Undang No. 11 Tahun 2008 Tentang Informasi dan Transaksi Elektronik memandang praktik jual beli data supplier tersebut, apakah telah sesuai dengan hukum yang menjadi pisau analisis dalam penelitian ini atau belum. Penelitian ini menggunakan metode kualitatif dengan pendekatan yuridis normatif dan studi kepustakaan. Sumber utama dalam penelitian ini adalah data sekunder yang mendukung penelitian ini, yaitu Alquran, Hadis, dan UU ITE. Sedangkan teknik pengumpulan data berupa wawancara dilakukan sebagai data pelengkap. Metode analisis yang digunakan yaitu descriptive analysis. Hasil dari penelitian ini adalah transaksi yang terjadi di Agen Fashion tidak sesuai dengan syarat jual beli dalam hukum Islam karena terdapat ketidakjelasan (gharar) pada kualitas objek transaksi, dan tidak sesuai dengan Pasal 9 dalam UU ITE karena pelaku usaha tidak menjelaskan secara lengkap terkait objek yang ditawarkan.Kata Kunci: Jual Beli, Hukum Islam, UU ITE, Gharar

Implications of marketing Jordan as a Halal tourism destination

2019 ◽  
Vol 11 (1) ◽  
pp. 97-116 ◽  
Author(s):  
Salem Harahsheh ◽  
Rafa Haddad ◽  
Majd Alshorman
Keyword(s):  
Islamic Law ◽  
Point Of View ◽  
Negative Evaluation ◽  
Tourism Destination ◽  
Chi Square ◽  
Content Type ◽  
Islamic History ◽  
Negative Results ◽  
Two Samples ◽  
Tourism Destinations

Purpose The purpose of this paper is to build a better understanding of the concept of Halal tourism as expressed by Muslim Jordanian tourists who want to comply with the Islamic law. The study also examines Jordan as a Halal tourism destination as perceived by those tourists. Implications of marketing Jordan as a Halal tourism destination are among the research questions. Design/methodology/approach The paper is empirical and quantitative in nature with a survey type. The sample of the study is Muslim Jordanians in the cities of Amman and Irbid. Respondents were chosen randomly in shopping malls, gardens and public places. A self-completion questionnaire was administered to collect the data for the research and 920 questionnaires were returned. The data were analysed using descriptive and reliability and explanatory factor analysis in addition to certain tests such as one sample t test and two samples chi-square tests. Findings Halal tourism in Jordan is established but needs more enhancements and promotion. Jordan was evaluated positively in 14 Halal services and was unsuccessful in ten others. The motives for Jordanian Muslim tourists who want to comply with the Islamic law, to travel to Halal destinations were destinations that offer Halal-friendly services; to know Islamic religious sites; and to learn about Islamic history. Jordanian tourists were knowledgeable of local and international Halal destinations (78.2 and 67%, respectively). More than half of the sample experienced Halal destinations in Jordan and only 26.4% abroad. From a marketing point of view, the results of this study reveal good awareness of potential Jordanian tourists towards Halal tourism and Halal services. The study revealed that Jordanian Muslim tourists who want to comply with the Islamic law showed significant positive motives to travel Halal tourism destinations. In addition, the study showed statistically significant knowledge and experiences in local Halal destinations, but not in foreign Halal destinations. Research limitations/implications The lack of research on Halal tourism in Jordan gives limited in-depth discussion. In addition, the study sample was chosen from two major cities in Jordan; therefore, further research is needed to include a representative sample of the whole country. Practical implications The paper includes marketing implications on Halal tourism in Jordan. The authors suggest marketing strategies should be launched to emphasise the importance of Halal tourism and marketing Jordan as Halal tourism destination. The recommendations of this study provide positive and negative results on Jordan as a Halal tourism destination. The negative evaluation of Jordan in terms of Halal services should be redressed by the Jordanian Government and the Jordanian private tourism and hospitality sectors to build a positive image of Jordan as a potential competitive Halal destination for Muslim tourists who want to comply with the Islamic law. Originality/value The paper is among the first of its kind, which empirically examined the motives of Jordanian Muslims who want to comply with the Islamic law to travel to Halal tourism destinations as well as evaluating Jordan as a Halal tourism destination. This study fills the gap in literature about Halal tourism in Jordan and presents Halal tourism as one of the alternative forms of tourism of high potential for Jordan to compete in this market segment.

Holy Warriors, Rebels, and Thieves

2021 ◽  
Author(s):  
Joshua M. White
Keyword(s):  
Early Modern ◽  
Ottoman Empire ◽  
Islamic Law ◽  
Point Of View ◽  
Wide Range

The essay takes a non-Eurocentric point of view and aims to highlight the concurrent concepts of piracy and other forms of maritime violence in the early modern Mediterranean. The author shows that a wide range of concepts were used in the early modern Ottoman Empire to conceptualize what Europeans termed piracy or privateering. As in Europe, there was considerable ambiguity in the use and interpretation of these terms, and the practices that they described. In contrast to the emphasis that contemporary Europeans put on the distinction between piracy and privateering, in theory if not always in practice, Ottoman Islamic law did not differentiate between foreign Christian pirates and foreign Christian corsairs or privateers.

Liability of international organizations

1988 ◽  
Vol 1 (1) ◽  
pp. 3-14 ◽  
Author(s):  
Henry G. Schermers
Keyword(s):  
International Law ◽  
International Organizations ◽  
Point Of View ◽  
International Organization ◽  
Theoretical Point ◽  
Governmental Organizations ◽  
Legal Questions ◽  
Legal Literature ◽  
Financial Obligations

When in 1985 the International Tin Council was unable to meet its financial obligations, various legal questions arose. It appears that the question of liability of international organizations has, up till now, not been adequately addressed. The article written by Professor Henry G. Schemers is a first attempt in legal literature to examine the liability of international organizations from a theoretical point of view. The author concludes that the principle that everybody is liable for his debts does not apply to international governmental organizations. The liability of governments is, in the eyes of the author, not limited when they perform some of their tasks through an international organization, unless there is an express provision to this effect. However, in general international law is insufficiently developed with respect to the payment of debts of international organizations.

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