Islamic Law and Freedom of Religion: The Case of Apostasy and Its Legal Implications in Egypt

2013 ◽  
Vol 10 (1) ◽  
Author(s):  
Moataz Ahmed El Fegiery
ULUMUNA ◽  
2017 ◽  
Vol 16 (1) ◽  
pp. 103-124
Author(s):  
Zaenuddin Mansyur

In order to answer a variety of issues faced by human being in the current era, such as human rights abuses, social disintegration, and terrorism, the renewal of Islamic law in the level of theoretical and practical aspects is very urgent. This paper aims to examine one of the Islamic legal reform efforts, namely to build a more technical understanding of the concept of maṣlaḥah contained in the maqāṣīd sharī‘ah, called the al-kulliyat al-khamsah. Therefore, the concept of maṣlaḥah in ḥifẓ al-dīn is technically defined as al-ḥurriyah al-i‘tiqād (freedom of religion and schools); in ḥifẓ al-nafs as al-karamat al-insān (human being breeding); in ḥifẓ al-nasl as ḥifẓ al-usrah (wholeness and harmony of the family); in ḥifẓ al-māl as al-taḍammun al-insān (social solidarity ), and in ḥifẓ al-‘aql as al-ḥuqūq as al-tarbiyāt (increasing human resources quality).


2018 ◽  
Vol 13 (2) ◽  
pp. 313-338
Author(s):  
Moh. Dahlan

This paper by using the ijtihad paradigm of maqâshid al-syarî’ah of Jasser Audah and the descriptive-analytical approach, would like to emphasize that the role of religion and economic welfare are two things that cannot be separated. Although in practice these two things often face obstacles, especially in the matter of diversity in religious life because of the superficial ijtihad paradigm of Islamic law. Based on the contemporary paradigm that seeks to provide new criteria in the conception of qath’i al-dlilalah and dlanni al-dlilalah, it can be stated that the contemporary Islamic law paradigm that needs to be built must be based on (a) the development of citizens’ welfare Muslims, but also must be the same as non-Muslims because of that we need to carry out financial and economic reforms (al-ishlâh al-mâlî wa al-iqtishâdî); (b) protection of freedom of thought (hurriyah al-tafkîr) and freedom of religion (hurriyah al-i’tiqâd) is an important aspect that must be maintained to guarantee the peace and harmony of the nation’s life in the territory of Indonesia. Therefore, the religious and economic aspects must be prioritized for their protection and safety.


2018 ◽  
Vol 6 (1) ◽  
pp. e000520 ◽  
Author(s):  
Nazim Ghouri ◽  
Sufyan Hussain ◽  
Ruzwan Mohammed ◽  
Salem Arifi Beshyah ◽  
Tahseen A Chowdhury ◽  
...  

A large proportion of the Muslim population fasts during Ramadan. The risk of hypoglycemia is increased with fasting during Ramadan in people with diabetes who are on insulin and insulin secretagogues. Therefore, the combination of fasting with diabetes and driving presents a challenging situation, with legal implications for such individuals and their healthcare professionals. This novel, narrative, non-systematic review discusses the importance of addressing hypoglycemia in fasting with reference to secular legal guidance on driving with diabetes. We discuss religious aspects relating to fasting and driving in Islam. While there is no clear guidance or legal position on diabetes and driving for individuals who are fasting, Islamic law provides a logical framework to address this. Healthcare professionals need to raise and facilitate discussions on this often-overlooked topic with people with diabetes who are planning on fasting to minimize the potential for public harm. For some individuals fasting perhaps should be avoided when driving and that this religiously compatible position would best be adopted when one is dependent on driving for livelihood. Ultimately further research on glycemic control and management when fasting and driving, as well as a formal legal guidance on this topic, is required to safeguard healthcare professionals and the public from the potential dangers of driving with diabetes and fasting.


2018 ◽  
Vol 3 (2) ◽  
pp. 454-484
Author(s):  
Nur Rofikoh

Abstract: This article discusses about the freedom of religion in Indonesia according to riddah law ratio legis. In Indonesia, the guarantee of religious freedom is in the 29th article of 2nd paragraph in the 1945 Constitution that someone is free to choose and embrace a particular religion. Persons who convert from one religion to another shall not be punished, except those whose religion denounces, abuses or condemns oother religions which may be punished. The act is regulated in the article 156a of the Criminal Code concerning the prohibition of abuse or defamation of religion. Islam guarantees freedom of religion as the Qur'anic verse of al-Baqarah verse 256 that there is no compulsion to enter Islam. In a Islamic law, a person who comes out of Islam is called apostate and his blood is halal to be killed. The act is included in the category of riddah jarîmah which can be sentenced a hadd punishment, death penalty. Nevertheless, there are some opinions that in Islamic law not all people come out of Islam can be put to death, only those who emerge from their religion that cause rebellion, chaos on the earth that can be killed. Keywords: Religious freedom, Indonesia, ratio legis, riddah. Abstrak: Artikel ini membahas tentang kebebasan beragama di Indonesia menurut ratio legis hukum riddah. Di Indonesia, jaminan atas kebebasan beragama terdapat dalam pasal 29 ayat 2 UUD 1945. Warga yang melakukan pindah agama satu ke agama yang lain tidaklah dikenai hukuman, kecuali mereka yang dalam agamanya mencela, menghina atau menista agama lain yang dapat dijatuhi hukuman. Perbuatan tersebut diatur dalam pasal 156a KUHP tentang larangan melakukan penyalahgunaan atau penodaan terhadap agama. Islam menjamin kebebasan beragama sebagaimana nash al-Qur’an surah al-Baqarah ayat 256, bahwasanya tidak ada paksaan untuk memasuki agama Islam. Dalam hukum Islam, seseorang yang keluar dari agama Islam disebut murtad dan halal darahnya untuk dibunuh. Perbuatan tersebut masuk dalam kategori jarîmah riddah yang dapat dijatuhi hukuman hadd yakni hukuman mati. Meski demikian, ada beberapa pendapat bahwa dalam hukum Islam tidak semua orang keluar dari Islam dapat dihukum mati, hanya orang yang keluar dari agamanya yang menimbulkan pemberontakan, kekacauan di muka bumilah yang dapat dihukum mati. Kata Kunci: Kebebasan beragama, Indonesia, ratio legis, riddah.


Author(s):  
Moschtaghi Ramin S

This chapter analyzes the tensions between Islam and the principles of the Afghan Constitution. It first identifies the different principles of the Afghan Constitution and then examines points of conflict between them. Based on an assessment of a specific conflict between Islamic law and human rights concerning the treatment of apostates in Islam and the freedom of religion, it proposes a practical approach how to solve conflicts between different Afghan constitutional principles and values.


AL-HUKAMA ◽  
2020 ◽  
Vol 10 (1) ◽  
pp. 150-170
Author(s):  
Edi Kurniawan ◽  
Ulul Albab Fadhlan ◽  
Illy Yanti

Khul' or divorce requested by a wife is one of the causes marital termination. According to Imam Syafi'i, khul' is a divorce (talak) with an  'iddah of three menstruat cycles. In contrast, for Imam Hanbali, khul' is fasakh in which its 'iddah is one menstrual cycle and its legality does not require a judge's decision. This difference has dissimilar legal implications when it is applied in Indonesia. Therefore, this article aims to seek the both relevancies in the context of Indonesian law, especially under the Compilation of Islamic Law and the nature of the religious practice of Indonesian Muslims. After examining the relevant literature sources, this article shows that, both Imam Syafi'i and Imam Hanbali agree that khul' is like a buy-sell contract, and hence a judge's decision is not required. However these both agremeents are not relevance under the Compilation of Islamic Laws, but the Imam Hanbali's fiqh in which khul' as fasakh would be difficult to seek its relevance. Thus, the fiqh of Imam Syafi'i is more appropriate, since beside it is used as a basis for the Compilation of Islamic Laws the majority of Indonesian Muslims embrace the Syafi’i mazhab.


2015 ◽  
Vol 5 (2) ◽  
pp. 588-611
Author(s):  
Imroatul Azizah

Abstract: Riddah (apostasy), in the classical literatures of Islamic Jurisprudence, is categorized as a jarimah al-hudud (criminal act) with death penalty as the punishment. The fundamental issue is that the threat of the death penalty is only based on a single prophetic tradition, while it should be determined by the absolute and valid texts. It means that the death penalty is rooted to an absolute legal argumentation (qat’i al-dalalah), while, there is none of the verses of al-Qur’an which discusses about punishment for the perpetrator of apostasy. Otherwise, al-Qur’an absolutely guaranteesthe freedom of religion and belief. This research uses maqasid al-shari’ah (purposes of Islamic law)as an approach to see the purpose, spirit, and essential valueof the text to be a foundation and method in Islamic legal reasoning. The results of the research are: first, adopting what has been stipulated in al-Qur’an textually and formally without appreciating its purpose and wisdom is not wise; second, apostasy, which is a kind of a private matter between a servant and his God, should not be categorized as a jarimah al-hudud but as a jarimah ta’zir (undefined crime). In certain condition, however, apostasy could be charged by a maximum penalty (death penalty) if it is accompanied by other crimes and is worthyto be sentenced based on a judge’s argumentation.Keywords: Apostasy, sanctions, maqasid al-shari’ah Abstrak: Riddah dalam literatur fiqih klasik dikategorikan sebagai jarimah hudud, dan diancam dengan hukuman mati. Persoalan yang mendasar adalah ancaman hukuman mati tersebut hanya berdasarkan hadis ahad, padahal hudud dikonsepsikan sebagai jarimah dan hukuman yang telah ditentukan secara pasti oleh nass. Berarti hudud meniscayakan dalil yang qat’i al-dalalah, sedangkan dalam al-Qur’an tidak ada satu ayat pun yang membahas hukuman duniawi untuk pelaku riddah, sebaliknya al-Qur’an justru memberikan jaminan kebebasan beragama dan berkeyakinan secara mutlak. Maqasid al-shari’ah dipilih sebagai pendekatan untuk melihat bagaimana tujuan, ruh, dan nilai-nilai esensial shari’at dijadikan landasan dan patokan utama dalam penentuan hukum Islam. Dengan pendekatan maqasid al-shari’ah, diperoleh kesimpulan bahwa bukanlah sikap yang bijak ketika mengadopsi apa yang ditetapkan dalam nass secara literal dan formal legalistik tanpa mengapresiasi tujuan serta hikmah terdalam dari hukum tersebut. Riddah yang merupakan persoalan pribadi antara hamba dengan Tuhan-Nya, tidak selayaknya dikategorikan sebagai jarimah hudud. Namun sebagai jarimah ta’zir, riddah bisa dikenakan hukuman maksimal (mati) jika disertai dengan kejahatan lain yang menurut hakim harus dijatuhi hukuman tersebut.Kata Kunci: Riddah, sanksi, maqasid al-shari’ah


2021 ◽  
Vol 16 (2-3) ◽  
pp. 117-142
Author(s):  
Amal Idrissi

Abstract This paper will consider the extent to which two competing norms—freedom of religion, on the one hand, and Islam as the religion of the state, on the other—are in tension with each other as seen through the lens of three Muslim-majority countries in the Maghreb. I examine this potential tension in four steps: first, the transformation of meaning of the Arabic word “hurriyya” (freedom) during and after the 19th century; second, the articulation of Islam as the religion of the state in the constitutions of Morocco, Algeria, and Tunisia; third, the articulation of freedom of religion (whether freedom of worship or conscience) in the constitutional texts of these three countries, and finally, the question whether the laws and practices that implement these two constitutional norms are compatible or whether they in fact give priority to Islam as the state religion over the norm of freedom of religion. In Morocco, Algeria, and Tunisia, Islam plays an important role in the legal system, especially in family codes: the Moroccan Family Code (2004), the Algerian Family Code (2016), and the Tunisian Personal Status Code (1957). These are the remaining citadels most implicated with references to Islamic law, the interpretation of which has placed women in an unequal position.


Author(s):  
Asmuni Asmuni ◽  
Hasan Matsum ◽  
Hadi Munawwar

It is an agreement of the ummah, that what Allah revealed in the Al-Qur'an and also what was conveyed by the Messenger of Allah in the Hadith are the basic sources of Islamic law. The two sources, of which there is an order (Amr), this Amr has various meanings such as obligatory, mustahab and others. In this study, the researcher attempted to describe the views of the scholars of jurisprudence in understanding the meaning of amar and its implications for one of the Islamic laws, and here the researcher took one case, namely the practice of worship during the Covid-19 Pandemic. Although most of the Ulama proposing fiqh are of the view that amr basically has a mandatory meaning unless there is a qarinah, in practice there are differences between them. In this study, the researcher used an analytic descriptive method in which after the researcher described the views of the Ulama with regard to the meaning of amr, the designation of the meaning of amar and the legal implications of practicing worship during the Covid-19 Pandemic, considering that at this time there were differences in worship practices that had never happened before Furthermore, the researcher provides some analysis of what the researchers understand based on the views of scholars and experts in this matter.


SASI ◽  
2018 ◽  
Vol 24 (1) ◽  
pp. 19
Author(s):  
Sabri Fataruba

Article 24 of Law Number 41 Year 2004 on Wakaf states that wakaf with testament both orally and in writing can only be done if witnessed by at least 2 (two) witnesses who meet the requirements. The statement that wakaf with a will, either orally or in writing can only be done if witnessed by at least 2 (two) witnesses fulfilling the requirements as meant in Article 24 of Law Number 41 Year 2004 above means that if the endowers with oral or written testimony is not witnessed by at least 2 (two) witnesses who fulfill the requirements, it will have a legal effect on the validity of the waqf status. However, after the following articles and / or paragraphs of Law Number 41 Year 2004 along with their explanation, as well as Government Regulation Number 42 of 2006 on Implementation of Law Number 41 Year 2004 About Wakaf,  there was not  found any article explains what legal implications would be if the wakaf testament is not witnessed by at least 2 (two) witnesses who meet the requirements. Therefore, in order to overcome the incompleteness resulting in the ineffectiveness of Article 24, if there are any concrete events related to the will of judgment submitted to the court to be resolved, the judge shall be able to use the method of legal discovery, either according to the science of law or according to Islamic law appropriately, so it can provide legal certainty for justice seekers.


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