Descent and Inheritance in Zoroastrian and Shiʿite Law: A Preliminary Study

Der Islam ◽  
2017 ◽  
Vol 94 (2) ◽  
Author(s):  
Maria Macuch
Keyword(s):  
Islamic Law ◽  
Formative Period ◽  
Customary Law ◽  
Distinctive Features ◽  
Family Ties ◽  
Sasanian Empire ◽  
Preliminary Study ◽  
The One ◽  
Law Of Succession ◽  
Traditional Norms

Abstract:The Twelver Shiʿite law of inheritance constitutes one of the most distinctive features of the legal system in comparison with Sunni law. Although there are major and even irreconcilable divergences between the Sunnite law of succession according to all four legal schools on the one hand and Twelver Shiʿite law on the other, no convincing explanations for this striking development within Islamic law itself, leading to two fundamentally distinct systems, have hitherto been put forward. The aim of this preliminary study is to call attention to several remarkable correspondences between the complex Iranian (Zoroastrian) law of succession, conceived to support the specific needs of aristocratic descent groups in the Sasanian period, and Twelver Shiʿite regulations, reflecting a very similar underlying concept of family ties and descent groups as a whole. The question is, whether these congruencies are purely coincidental or based on age-old social and traditional norms, which continued to be practised in the regions of the former Sasanian empire after the Islamic conquest. As Sasanian norms remained operative in customary law (now documented by Pahlavi legal documents from 8th century Tabarestān) during the formative period of Islamic law and the Sunnite regulations, being based to a large extent on pre-Islamic tribal law in Arabia, contrast sharply with the Shiʿite concept, it would be consistent to assume that certain precepts in the pre-Islamic Iranian system had an important impact on the development of the Twelver Shiʿite law of inheritance.

Rigidity Versus Openness in Late Classical Islamic Law: The Case of the Seventeenth-Century Palestinian Muftī Khayr al-Dīn al-Ramlī

1998 ◽  
Vol 5 (2) ◽  
pp. 165-195 ◽  
Author(s):  
Haim Gerber
Keyword(s):  
Seventeenth Century ◽  
Islamic Law ◽  
The Other ◽  
Customary Law ◽  
The West ◽  
Scholarly Literature ◽  
Other Hand ◽  
The One ◽  
The Impact ◽  
Over Time

AbstractIn this study I reexamine some well-known generalizations about Islamic law prior to the impact of the West, e.g., the contention that Islamic law became increasingly closed, based more and more on blind imitation. My examination of the fatwā collection of the seventeenth-century Palestinian Muftī Khayr al-Dīn al-Ramlī suggests that increasing closure never took place. On the one hand al-Ramlī faithfully continues the tradition of his classical predecessors, or, in other words, he practices taqlīd by obligating himself to earlier authorities. On the other hand, his fatwās convey a sense of openness, flexibility, and liveliness. These characteristics are concretized in some of the major terms that he uses: ijtihād, or free discretion of the jurist in areas of the law that remained open; iṣtiḥsān, or relaxation of formal rules; and ʿurf, or local customary law, which, by definition, is changeable over time. In my view, the flexibility of Islamic law has been underemphasized in the scholarly literature, and hence it is on this factor in particular that I have chosen to concentrate.

The Wills and Administration of Testate Estates Act 1989 and The Intestate Succession Act 1989 of Zambia

1989 ◽  
Vol 33 (1) ◽  
pp. 128-132
Author(s):  
Simon Coldham
Keyword(s):  
The Other ◽  
Customary Law ◽  
The Law ◽  
Conducting Research ◽  
Draft Bill ◽  
The One ◽  
Law Of Succession

After conducting research into the customary law of succession and considering the various arguments for and against reforming succession law, in 1982 the Law Development Commission published a report which favoured reform and which contained a draft bill dealing with testate and intestate succession, and with family provision. Now two laws have been enacted, the one governing wills and the administration of testate estates, the other governing intestacy and the administration of intestate estates. Although there are obvious similarities between the draft bill and the new laws, there are also significant differences. It is not only that the draft bill did not deal with the administration of estates, but that several of its key provisions relating to wills and intestacy have been modified or abandoned.

scholarly journals Till Death Do Us Part: The Ailment Affecting the Widow’s Life Interest in Kenyan Intestate Succession

2019 ◽  
Vol 4 (1) ◽  
pp. 1-18
Author(s):  
Khalil Badbess
Keyword(s):  
Literature Review ◽  
Customary Law ◽  
Case Review ◽  
Equal Rights ◽  
The Law ◽  
The One ◽  
Law Of Succession ◽  
Legislative Review

Succession law in Kenya has developed from pre-independence where an array of regimes determined inheritance depending on whom they applied to, to an age where a single legislation was made to resolve this multiplicity; the Law of Succession Act. Since then, a new Constitution has been promulgated and the old one repealed. There are certain areas of the Act that resemble the latter more than the former. One such area is that of intestacy. More specifically, the position taken on the one-sided determination of the life interest of a widow upon remarriage. This study tackles this issue and finds that Sections 35(1) and 36(1) are indeed contrary to the entitlement of rights in Article 45(3) guaranteeing equal rights to parties within a marriage. It further advances the argument that this inconsistency has its possible origins in African Customary law and owes its longevity to a foregone constitutional era. The recommendation offered is an amendment to the Act aimed at equalising the parties to a marriage by ensuring parity in the duration of the life interest. In addressing itself on these issues, a synthesis of literature review, case review, legislative review and a key analysis of constitutional preparatory documents is used.

Gendering Emotions: Ṭarab, Women and Musical Performance in Three Biographical Narratives from ‘The Book of Songs’

2019 ◽  
Vol 8 (2) ◽  
pp. 164-183
Author(s):  
Karen Moukheiber
Keyword(s):  
Formative Period ◽  
Musical Performance ◽  
Ruling Elite ◽  
Islamic History ◽  
Musical Performances ◽  
Slave Women ◽  
Social Conduct ◽  
Literary Biographies ◽  
The One ◽  
The Book Of Songs

Musical performance was a distinctive feature of urban culture in the formative period of Islamic history. At the court of the Abbasid caliphs, and in the residences of the ruling elite, men and women singers performed to predominantly male audiences. The success of a performer was linked to his or her ability to elicit ṭarab, namely a spectrum of emotions and affects, in their audiences. Ṭarab was criticized by religious scholars due, in part, to the controversial performances at court of slave women singers depicted as using music to induce passion in men, diverting them from normative ethical social conduct. This critique, in turn, shaped the ethical boundaries of musical performances and affective responses to them. Abū l-Faraj al-Iṣfahānī’s tenth-century Kitāb al-Aghānī (‘The Book of Songs’) compiles literary biographies of prominent male and female singers from the formative period of Islamic history. It offers rich descriptions of musical performances as well as ensuing manifestations of ṭarab in audiences, revealing at times the polemics with which they were associated. Investigating three biographical narratives from Kitāb al-Aghānī, this paper seeks to answer the following question: How did emotions, gender and status shape on the one hand the musical performances of women singers and on the other their audiences’ emotional responses, holistically referred to as ṭarab. Through this question, this paper seeks to nuance and complicate our understanding of the constraints and opportunities that shaped slave and free women's musical performances, as well as men's performances, at the Abbasid court.

SAYYID ABUL AÑLÓ MAWDÕDÔ’S VIEWS ON IJTIHÓD AND THEIR RELEVANCE TO THE CONTEMPORARY MUSLIM SOCIETY

2010 ◽  
Vol 6 (2) ◽  
pp. 121
Author(s):  
Munawar Haque
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Legal Aspect ◽  
Academic Research ◽  
Spiritual Leadership ◽  
Legislative Process ◽  
Islamic Revival ◽  
Muslim Society ◽  
The One ◽  
Political Economic

Abstract  The purpose of this article is to explore the views of Sayyid Abul AÑlÉ MawdËdÊ[1] on ijtihÉd.[2] It intends to trace the origins of MawdËdÊ’s ideas within the social, cultural and political context of his time, especially the increasing influence of modernity in the Muslim world.  The study will show that MawdËdÊ’s understanding of ijtihÉd and its scope demonstrates originality.  For MawdËdÊ, ijtihÉd is the concept, the process, as well as the mechanism by which the SharÊÑah,[3] as elaborated in the Qur’Én and the Sunnah[4] is to be interpreted, developed and kept alive in line with the intellectual, political, economic, legal, technological and moral development of society.  The notion of ijtihÉd adopted by MawdËdÊ transcends the confines of Fiqh[5] (jurisprudence) and tends therefore to unleash the dormant faculties of the Muslim mind to excel in all segments of life.   [1] Sayyid Abul AÑlÉ MawdËdÊ was born on September 25, 1903 in Awrangabad, a town in the present Maharashtra state of India in a deeply religious family.  His ancestry on the paternal side is traced back to the Holy Prophet (peace be upon him).  The family had a long-standing tradition of spiritual leadership, for a number of MawdËdÊ’s ancestors were outstanding leaders of ØËfÊ Orders.  One of the luminaries among them, the one from whom he derives his family name, was KhawÉjah QuÏb al-DÊn MawdËd (d. 527 AH), a renowned leader of the ChishtÊ ØËfÊ Order. MawdËdÊ died on September 22, 1979. See Khurshid Ahmad and Zafar Ishaq Ansari, “MawlÉnÉ Sayyid Abul AÑlÉ MawdËdÊ: An Introduction to His Vision of Islam and Islamic Revival,”, in Khurshd Ahmad and Zafar Ishaq Ansari (eds.) Islamic Perspectives: Studies in Honour of MawlÉnÉ Sayyid Abul A’lÉ MawdËdÊ,  (Leicester: The Islamic Foundation,1979), 360. [2]  In Islamic legal thought, ijtihÉd is understood as the effort of the jurist to derive the law on an issue by expending all the available means of interpretation at his disposal and by taking into account all the legal proofs related to the issue.  However, its scope is not confined only to legal aspect of Muslim society.  MawdËdÊ’s concept of ijtihÉd is defined as the legislative process that makes the legal system of Islam dynamic and makes its development and evolution in the changing circumstances possible.  This results from a particular type of academic research and intellectual effort, which in the terminology of Islam is called ijtihÉd.  The purpose and object of ijtihÉd is not to replace the Divine law by man made law.  Its real object is to properly understand the Supreme law and to impart dynamism to the legal system of Islam by keeping it in conformity with the fundamental guidance of the SharÊÑah and abreast of the ever-changing conditions of the world.  See Sayyid Abul AÑlÉ MawdËdÊ, The Islamic Law and Constitution, translated and edited by Khurshid Ahmad, (Lahore: Islamic Publications Ltd, 1983), 76.[3] SharÊÑah refers to the sum total of Islamic laws and guidance, which were revealed to the Prophet MuÍammad (peace be upon him), and which are recorded in the Qur’Én as well as deducible from the Prophet’s divinely guided lifestyle (called the Sunnah). See Muhammad ShalabÊ, al-Madkhal fÊ at-TaÑ’rÊf  b alil-Fiqh al-IslÉmÊ, (Beirut: n.p., 1968),.28.[4]Sunnah is the way of life of the Prophet (peace be upon him), consisting of his sayings, actions and silent approvals. It is also used to mean a recommended deed as opposed to FarÌ or WÉjib, a compulsory one.[5]  Originally Fiqh referred to deliberations related to one’s reasoned opinion, ra’y.  Later the expression Fiqh evolved to mean jurisprudence covering every aspect of Islam.  It is also applied to denote understanding, comprehension, and profound knowledge. For an excellent exposition on the meaning of Fiqh, see Imran Ahsan Khan Nyazee, Theories of Islamic law: The methodology of ijtihÉd, (Delhi: Adam Publishers & Distributors, 1996), 20-22.

Muslims, Islamic Law, and the Sociopolitical Reality in the United States

2000 ◽  
Vol 17 (2) ◽  
pp. 1-28
Author(s):  
Sherman A. Jackson
Keyword(s):  
Islamic Law ◽  
The United States ◽  
The Other ◽  
Double Consciousness ◽  
American Muslims ◽  
Way Of Life ◽  
Subjective Responses ◽  
Self Image ◽  
The One ◽  
Politics And Law

Native born African-American Muslims and the Immigrant Muslimcommunity foxms two important groups within the American Muslimcommunity. Whereas the sociopolitical reality is objectively the samefor both groups, their subjective responses are quite different. Both arevulnerable to a “double Consciousness,” i.e., an independently subjectiveconsciousness, as well as seeing oneself through the eyes of theother, thus reducing one’s self-image to an object of other’s contempt.Between the confines of culture, politics, and law on the one hand andthe “Islam as a way of life” on the other, Muslims must express theircultural genius and consciously discover linkages within the diverseMuslim community to avoid the threat of double consciousness.

Ambiguities of Colonial Law: the Case of Muhammadu Aminu, Former Political Agent and Chief Alkali of Kano

2009 ◽  
Vol 36 ◽  
pp. 17-52
Author(s):  
Philip Atsu Afeadie
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Customary Law ◽  
Religious Leader ◽  
Political Agent ◽  
Judicial Administration ◽  
Western Law ◽  
Political Agents ◽  
Productive Systems ◽  
Colonial Government

Colonial law in Africa involved European moral and legal codes representing some rules of western law, as well as elements of African customary law. However, the colonial situation embodying political and economic domination necessarily negated the ideal practice of the rule of law. Nevertheless, the need arose to introduce some aspects of western law and codes of administration, including salary and benefits schemes for African employees of the colonial government, and legal entitlements such as court trials for accused government employees. These considerations were deemed necessary, if at least to propitiate metropolitan critics of the colonial establishment. Also some rule of law was required for the organization of the colonial economy, including regulation of productive systems and commercial relations. As well, the need for indigenous support necessitated dabbling in indigenous customary conventions. In Muslim polities such as Kano in northern Nigeria, customary conventions included Islamic law.On the establishment of colonial rule in Kano, judicial administration was organized on three principal institutions, involving the resident's provincial court, the judicial council (emir's court), and the chief alkali's court in Kano City with corresponding district alkali courts. The resident's provincial court had jurisdiction over colonial civil servants, including African employees such as soldiers, police constables, clerks and political agents. Also, the provincial court was responsible for enforcing the abolition of the slave trade in the region. The judicial council, classified as “Grade A” court, was composed of the emir, thewaziri(chief legal counselor), the chiefalkaliof Kano (chief judge), theimam(the religious leader of Kano mosque), thema'aji(treasurer), and general assistants including some notable scholars of Kano city. The council adopted thesha'ria(Muslim law) and local Hausa custom, and its jurisdiction extended over “matters of violence, questions of taxation and administration, and cases involving property rights, whether over land, livestock, trade goods, or slaves.” On the issue of capital sentencing, the judicial council required the approval of the resident. The council was also prohibited from authorizing punishments involving torture, mutilation, or decapitation.

Distinctive Features in Speech Pathology: Phonology or Phonemics?

1976 ◽  
Vol 41 (1) ◽  
pp. 23-39 ◽  
Author(s):  
Frank Parker
Keyword(s):  
Speech Production ◽  
Speech Signal ◽  
Speech Pathology ◽  
Direct Relation ◽  
Crucial Point ◽  
Distinctive Features ◽  
Phonological Structure ◽  
Generative Theory ◽  
Speech Science ◽  
The One

Distinctive feature is not a unique concept within linguistic theory. It has two distinct theoretical bases: phonemic theory and generative theory. Phonemic theory assumes a direct correspondence between distinctive features (the elements of phonemes) and the speech signal. Although this assumption can be shown to be incorrect, it seems to be the one most widely held in speech science. Generative theory, on the other hand, assumes no such direct relation and consequently can account for certain linguistic phenomena that phonemic theory cannot. This theory then seems to be preferable to phonemic theory for a featural analysis of misarticulation. However, there is a problem. Chomsky and Halle’s system (generative theory) as it stands does not deal with the link between what it conceives to be the lowest level of linguistic structure (the phonetic matrix) and speech production. Therefore, Chomsky and Halle’s distinctive features cannot be applied fruitfully to all instances of misarticulation. The discrepancy that exists between phonological structure and the speech signal must be accounted for in a theory of speech production. This can be accomplished by recognizing a production matrix below the phonetic matrix, where segments are described in terms of production features. The crucial point is that no one-to-one relationship necessarily exists between distinctive features and production features.

scholarly journals The Position of Women's Heritage Rights in the Context of Islamic Heritage in Indigenous Mandailing in Sipirok District, Tapanuli Selatan Regency

2020 ◽  
Vol 3 (1) ◽  
pp. 531-539
Author(s):  
Muhammad Yusuf Siregar ◽  
Risdalina Risdalina ◽  
Sriono Sriono
Keyword(s):  
Islamic Law ◽  
Legal Aspects ◽  
Customary Law ◽  
Legal Basis ◽  
Inheritance Law ◽  
The Republic ◽  
The Right ◽  
To Receive ◽  
Inheritance Laws

This study aims to analyze the legal aspects of the Position of Inheritance Rights of Girls in the Context of Islamic Inheritance in Indigenous Mandailing in Sipirok District, South Tapanuli Regency. This research is empirical normative namely research by looking at existing conditions in the field by linking the source of Islamic Law and the legal source of Regulations in force in the Republic of Indonesia. The benefits to be received from the results of this study are to determine the Position of Inheritance of Girls in the Context of Islamic Law and Regulations in Indonesia and the Position of Inheritance of Girls in the Context of Islamic Inheritance in Mandailing Customs in Sipirok District, South Tapanuli Regency, the results of the study stated that In Islamic Inheritance Law strongly recognizes the position of the daughter in receiving inheritance with a strong legal basis in accordance with the al-Qur’an. In Islamic Inheritance Laws, a daughter has a position as Nasabiyah's heir so that she has the right to receive inheritance. In the Mandailing customary inheritance law in Sipirok Mandailing Natal, the position of a daughter is considered as an heir when a male heir is found, but if the girl is a mere woman, the woman is not entitled to inheritance from her parents. The distribution of inheritance in the Mandailing Inheritance law in Sipirok Mandailing Natal uses local customary law, as a basis for the distribution of inheritance which is still being realized in the Community.

scholarly journals Konsep Khilafah Menurut Sayyid Quthb dan Taqiyuddin Al-Nabhani dalam Perspektif Syiasyah Syar’iyyah

PALAPA ◽  
2020 ◽  
Vol 8 (2) ◽  
pp. 244-284
Author(s):  
Nurhadi Nurhadi ◽  
Mawardi Dalimunthe
Keyword(s):  
Islamic Law ◽  
Descriptive Analysis ◽  
Data Sources ◽  
Primary Data ◽  
Legal Basis ◽  
Islamic World ◽  
The People ◽  
Qualitative Descriptive ◽  
The One ◽  
The Right

The purpose of this study is to find out the concept of khilafah according to Sayyid Quthub and Taqiyuddin al-Nabhani, differences and legal basis. This study is a library model, with primary data sources, the Zhilalal-Qur'anic Tafseer and Nizham Al-Hukmi Fi Al-Islam and qualitative descriptive analysis methods. The result is the thought of the concept of khilafah according to sayyid Quthub: 1). The concept of the ruler / caliph, that who becomes the ruler of the choice of the Muslims, acts in absolute freedom, but that person gets the authority because he constantly applies the law of Allah Almighty. 2). The Islamic government system, the Supra Nasional government (the unity of the entire Islamic world). 3). The pillars of his Islamic government: a). Justice of the ruler; b). People's obedience; c). Consultation between the people and the authorities. Thought of the concept of the Caliphate according to Taqiyuddin Al-Nabhani: 1). The concept of the ruler / caliph is a person who represents the Ummah in government affairs and power and in applying syara 'laws. 2). The system of government is khilafah. 3). The pillars of his Islamic government: a). Sovereignty in the hands of syara '; b). Power of the people; c). To appoint a legal Caliph fardlu for all Muslims; d). Only Khailfah has the right to carry out tabanni (adoption) against syara 'laws; e) The Caliph has the right to make constitutions and all other laws. The differences in the concept of khilafah are both: 1). According to Sayyid Quthub, if the ruler fails, then the ruler can be dismissed if the Muslims are no longer satisfied with him. This statement gives a signal that the people get rid of the rulers who no longer fulfill their functions (zhalim rulers). It is different from the opinion of Taqiyuddin al-Nabhani. An Amir al-mu'minin (Khalifah), even though he is responsible before the people and his representatives, but the people and their representatives are not entitled to dismiss him. Nor will the Caliph be dismissed, except when deviating from Shara law. The one who determined the dismissal was only the Mazhalim court. 2). The system of Islamic government according to Sayyid Quthub does not question any system of government in accordance with the system of conditions of society, but this government is characterized by respect for the supremacy of Islamic law (shari'ah). Whereas According to Taqiyuddin Al-Nabhani that the system of Islamic government is khilafah. 3). The pillars of Islamic government according to Sayyid Quthub and Taqiyyuddin al-Nabhani, points three parts a and b at the above conclusions are: 1). Sayyid Quthub: a). Justice of the ruler; b). People's obedience; c). Consultation between the people and the authorities. 2). Taqiyyuddin al-Nabhani: a). Sovereignty in the hands of syara; b). Power of the people; c). To appoint a legal Caliph fardlu for all Muslims; d). Only Khailfah has the right to do tabanni (adoption) against the laws of shara; e). The Caliph has the right to make constitutions and all other laws. The legal bases for determining the Caliphate according to both: 1). The legal basis for the establishment of the Caliphate according to Sayyid Quthub: 1). Ruler, Qur'an Surah (2) al-Baqarah verse 30; 2). Islamic Government System, Qur'an Surah (24) an-Nur verse 55; 3). Pillars of Islamic Government, Qur'an Surah (4) an-Nisa 'verse 58. 2). The legal basis for the establishment of the Caliphate according to Taqiyyuddin al-Nabhani: 1). Ruler, hadith of Muslim history from Abu Said Al khudri, Hadith no. 1853 and Muslims from Abdullah Bin Amru Bin Ash, Hadith no. 1844; 2). Islamic Government System, Al-Qur'an surah an-Nisa '(4) verse 59, an-Nisa' (4) verse 65. Muslim, saheeh Muslim, volumes, 3 pp., 1459 and 1480; 3). Islamic Pillars of Government al-Qur'an surah An-Nisa (3) verse 65, and Surah An-Nisa (3) verses': 5.

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