scholarly journals Language and Law: The Significance of Language Competence in Islamic Legal Theory

2019 ◽  
Author(s):  
Mhd. Syahnan ◽  
Ja’far . ◽  
Sahkholid Nasution ◽  
Rahmah Fithriani ◽  
Waizul Qarni ◽  
...  
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
High Standard ◽  
Arabic Language ◽  
Language Competence ◽  
Islamic Legal Theory ◽  
Depth Interview ◽  
Determining Factors ◽  
Language And Law

Language and law seem to have either distant or no connection at all. However, in reality these two disciplines are closely interconnected and interrelated, particularly in the perspectives of Islamic legal theory. One’s language competence is among the determining factors in comprehending Islamic law. This is because in Islamic legal theory, law is derived from the tenets enshrined in the Qur’an and the Prophetic traditions that require a high standard of Arabic language science. Thus, it can be concluded that language and law are inseparable. Unfortunately, many students majoring Islamic law still have minor knowledge as well as awareness of the connection between these two disciplines. Regarding this case in hand, the aims of this study are two fold; first, to find out students’ awareness of the role of language competence in Islamic legal theory, and second, to investigate the correlation between the awareness with students’ competence in Islamic legal theory. This study conducted at the postgraduate program, UIN SU employed a qualitative approach. The data were collected by using questionnaire and in-depth interview. The findings reveal that students’ awareness of the significance of language competence is still relatively low. Furthermore, it is also found that the awareness is positively correlated with their competence in Islamic legal theory.

scholarly journals POSITIONING ISLAMIC LEGAL THEORY IN THE DEVELOPMENT OF ISLAMIC FINANCE

JURISDICTIE ◽  
2019 ◽  
Vol 10 (1) ◽  
pp. 18
Author(s):  
Nuha Qonita
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
New Product ◽  
Islamic Finance ◽  
Islamic Banking ◽  
Modern Time ◽  
Islamic Legal Theory ◽  
Islamic Jurisprudence ◽  
The World

<p>Islamic finance continues to grow over the world, the development of technology plays a crucial role to support Islamic finance. The great innovation of technology may come to dig up the potential of Islamic financing, yet digital system needs for sharia compliance, both are in similar needs for sharia overviews regardless different opinions of ijtihad in this modern time. Emphasizing case by case of Islamic finance has been done by the sharia scholars in producing the new product of Islamic banking and financing. The Islamic jurisprudence however should consider the substence and maqasid form of sharia. The objective of this paper is to enlight some vital parts of Islamic legal theory as part of Islamic law in implementing sharia compliance. Furthermore, provide the role of legal system which takes a crucial place in implementing the system, it should be harmonized in the existing condition of Islamic finance. This paper is qualitative methods with deep analysis on Islamic legal theory among muslim scholars.</p>

scholarly journals Akar, posisi, dan aplikasi adat dalam hukum

2015 ◽  
Vol 14 (2) ◽  
pp. 231
Author(s):  
Ahwan Fanani
Keyword(s):  
Crucial Role ◽  
Islamic Law ◽  
Legal Theory ◽  
Legal Argumentation ◽  
Private Law ◽  
Traditional Authority ◽  
Legal Argument ◽  
Islamic Legal Theory

Adat (custom) is a polemical topic in Islamic law. The development of Islamic law since the era of Prophet Muhammad has shown the important role of adat. Islamic law was formulated in accordance or in opposition to the custom of Arabs. However, classical Islamic legal theory (usul fiqh) does not consider it in legal argumentation. Its role is recognized in qawa‘id fiqhiyyah (principle of practical law) as one of five main principles. It is included in non-agreed legal argument. The paper is aimed to reveal the place of custom in Islamic law from the era of prophet to the contemporary era, especially in Islamic legal theory, in the principles of Islamic law, and in Islamic court according to manual book. This paper concludes that custom plays crucial role in elaborating Islamic law in practice. Custom has been acknowl- edged by Islamic scholars, especially by those of Hanafite and Malikite schools, as important part of Islamic law. However, they limites the role of custom in term of private law. The custom was never be discussed in term of rites and folklore, as it is popular now. The custom can still plays important role in Islamic private law or even in alternative dispute resolutions as far as traditional authority is needed and acknowledge by Islamic communities. Adat (custom) merupakan polemik dalam hukum Islam. Perkembangan hukum Islam sejak zaman Nabi Muhammad telah menunjukkan peran penting dari adat. Hukum Islam dirumuskan sesuai atau bertentangan dengan kebiasaan orang-orang Arab. Namun, teori hukum Islam klasik kita (usul fiqh) tidak mempertimbangkan dalam argumentasi hukum. Perannya diakui dalam qawa ‘id fiqhiyyah (prinsip hukum praktis) sebagai salah satu dari lima prinsip utama. Hal ini termasuk dalam argumen hokum yang tidak disepakati. Artikel ini bertujuan untuk mengungkapkan tempat adat dalam hukum Islam dari era Nabi ke era kontemporer, khususnya dalam teori hukum Islam, dalam prinsip-prinsip hukum Islam, dan di pengadilan Islam menurut buku manual. Tulisan ini menyimpulkan bahwa Adat memainkan peran penting dalam menguraikan praktek hukum Islam. Adat telah diakui oleh ulama Islam, terutama oleh orang-orang dari Mazhab Hanafi dan Maliki, sebagai bagian penting dari hukum Islam. Namun, mereka membatasi peran adat dalam hal hukum privat. Kebiasaan ini tidak pernah dibahas dalam hal ritual dan cerita rakyat, seperti yang populer sekarang. Kebiasaan masih bisa memainkan peran penting dalam hukum privat Islam atau bahkan dalam resolusi sengketa alternatif sejauh otoritas tradisional dibutuhkan dan diakui oleh masyarakat Islam.

scholarly journals The Closing of the Door of Ijtihad and the Application of the Law

1993 ◽  
Vol 10 (3) ◽  
pp. 396-401
Author(s):  
Frank E. Vogel
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Early Stage ◽  
Early Period ◽  
Court Records ◽  
Legal Documents ◽  
Islamic Legal Theory ◽  
Made In ◽  
The Ideal

This panel's center of gravity is Islamic legal theory and doctrine,particularly usul alfiqh. In this mom are many of the West's leadingscholars in this field. This puts me out of step, for my work leads me tostudy fiqh and usul alfiqh chiefly from the viewpoint of their application,an approach that is the result of spending several years in SaudiArabia studying the role of fiqh and the ulema in the Islamic legalsystem. I wish to submit, however, that there are a number of doctrinalproblems to which a study of the law's application and practice or, inother words, a study of the legal system, stands to contribute a great deal.The closing of the door of ijtihad, which I intend to discuss, is such anissue.But first let me make some general points to support the generalsuggestion I have just made. In western studies of fiqh, we have oftenomitted, justifiably or not, any consideration of the law's application.Among the valid justifications for doing so is the very vastness of thedoctrinal corpus. Another is that to get basic data on the law's historicalapplication is far more difficult than fvding its black-letter doctrine.Other justifications are more questionable. For one, we have often madecertain assumptions, which-stating them with due exaggeration-holdthat Islamic law, since it became stagnant at an early period, was usuallyignod in practice. As a d t of this, it is often maintained, fiqh retreatedinto the ideal world of scholarship while the application of the lawfell under the sway of arbitrary and despotic rulers. Approaching the lawwith such an impression, however much in the background, scholars ofIslamic law have, not surprisingly, spent little time on its application.This last justification for ignoring the law's application is now, I believe,rapidly eroding due to the efforts of scholars on many differentfronts. Some, notably Professor Hallaq, are at work countering the exaggeratedidea of the "closing of the door of ijtihad," a phrase used to conveythe idea that fiqh became utterly stultified at an early stage. Otherscholars ate examining late Shari'ah court records and legal documents ...

The Values and Norms of Islam

2010 ◽  
Vol 1 (1) ◽  
pp. 1-19
Author(s):  
Ahmed Akgunduz
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
The Other ◽  
Moral Norms ◽  
Simple Fact ◽  
Value System ◽  
Legal Norms ◽  
Islamic Legal Theory ◽  
The World ◽  
Over Time

AbstractIslamic Law is one of the broadest and most comprehensive systems of legislation in the world. It was applied, through various schools of thought, from one end of the Muslim world to the other. It also had a great impact on other nations and cultures. We will focus in this article on values and norms in Islamic law. The value system of Islam is immutable and does not tolerate change over time for the simple fact that human nature does not change. The basic values and needs (which can be called maṣlaḥa) are classified hierarchically into three levels: (1) necessities (Ḍarūriyyāt), (2) convenience (Ḥājiyyāt), and (3) refinements (Kamāliyyāt=Taḥsīniyyāt). In Islamic legal theory (Uṣūl al‐fiqh) the general aim of legislation is to realize values through protecting and guaranteeing their necessities (al-Ḍarūriyyāt) as well as stressing their importance (al‐ Ḥājiyyāt) and their refinements (taḥsīniyyāt).In the second part of this article we will draw attention to Islamic norms. Islam has paid great attention to norms that protect basic values. We cannot explain all the Islamic norms that relate to basic values, but we will classify them categorically. We will focus on four kinds of norms: 1) norms (rules) concerned with belief (I’tiqādiyyāt), 2) norms (rules) concerned with law (ʿAmaliyyāt); 3) general legal norms (Qawā‘id al‐ Kulliyya al‐Fiqhiyya); 4) norms (rules) concerned with ethics (Wijdāniyyāt = Aḵlāqiyyāt = Ādāb = social and moral norms).

scholarly journals The Theory of Interpretation in Solving Contemporary Legal Issues: With A Focus on the Instrument of Ijtihad

2018 ◽  
Vol 150 ◽  
pp. 05056
Author(s):  
Abdulrahman M.A.Albelahi ◽  
A. Ali ◽  
Faten Mohmed ◽  
Metwally Ali
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Legal Issues ◽  
Legal Interpretation ◽  
Way Of Life ◽  
Essential Question ◽  
Judicial Reasoning ◽  
The Law ◽  
Law And Legislation

Since the beginning, legal theory has concerned itself with the establishment of principles and precepts that govern the procedure of legal interpretation, from the initial stages of the judicial reasoning down to the promulgation of ruling and their implementation, Islam is a total way of life. Muslims are obliged to abide by the rules of Allah in every aspect of their lives, always and wherever they live. However, the actual rules of Allah as given in the Qur’an and the sunna are limited. The Qur’an contains only six hundred verses directly related to laws, and there are approximately two thousand hadiths. The function of interpretation is to discover the intention of the Lawmaker of the matter, therefore, interpretat primarily concerned with the discovery of that which is rot self-evident the objective of interpretation is to ascertain the intention c the Lawmaker with regard to what has been left unexpressed as a matter of necessary interference from the surrounding circumstances. Sometimes, the textual sources did not provide detailed guidelines in which to derive the law, and then the role of interpretation is important to determine the law. In Islamic law the role of Ijtihad undoubtedly important in order to meet new problems. But some of the Jurist contended that the role of Ijtihad had ended and we have to follow the rule that has been stated. An explanation given to this trend is that a point had been reached at which all essential question of law had been thoroughly discussed and further deliberation was deemed unnecessary. In Common law, man-made law and legislation are related to one another within a philosophy of law. Parliament makes law and it is the duty of the courts to give effect to them if properly enacted. While courts may rule that a particular statute or section is invalid for various reasons such as unconstitutionality, they cannot say, "We shall change this Act because it is not appropriate". That function belongs to Parliament (Wu Min Aun 1990: 120). So as in Islamic law, the Lawmaker is Allah S.w.t and the sacred text (Quran) is legislated due to His intention whereas Sunnah of the Prophet Muhammad is enacted due to the Prophet's intention. Therefore, Ulama of Usul Fiqh, in making any Ijtihad, they are du y bound to be guided by Quran and Sunnah.

Legislation as an Instrument of Islamic Law

2016 ◽  
pp. 550-584
Author(s):  
Leonard Wood
Keyword(s):  
Nineteenth Century ◽  
Islamic Law ◽  
Legal Theory ◽  
Islamic World ◽  
Islamic Legal Theory ◽  
History Of

This article examines legislation as an instrument of Islamic law in the history of the Islamic world and in Islamic legal theory, with particular emphasis on the scholarly analysis of whether Islamic law can be legislated at all, and if so, how. It first reviews the scholarship on legislation in the Islamic world before the mid-nineteenth-century Ottoman reforms (tanzimat)—the “premodern” centuries. It then considers legislation after the mid-nineteenth century—the “modern” centuries—by looking at scholars’ preoccupations with the apparent novelty of modern legislation and its debatable Islamicity. It also discusses empirical dilemmas underlying these preoccupations and competing scholarly approaches to theorizing and studying the proper relationship between legislation and Islam. The article concludes by suggesting four paths forward in the analysis of legislation as an instrument of Islamic law.

Rebelling against the Ruler: Egyptian Youth and Azhari Scholars’ Authority after the 2011 Uprising

2021 ◽  
pp. 1-41
Author(s):  
Nareman Amin
Keyword(s):  
Textual Analysis ◽  
Legal Status ◽  
Islamic Law ◽  
Legal Theory ◽  
Social Implications ◽  
Islamic Legal Theory ◽  
The Social ◽  
Legal Opinions ◽  
Political Realities ◽  
Moral Capital

Abstract Scholars have investigated statements by Azhari ʿulamāʾ (religious scholars) about the legality of protest in Egypt in 2011 and 2013 and their use of fiqh al-wāqiʿ, a jurisprudential method by which jurists consider social and political realities when issuing legal opinions. These studies focus on Islamic legal theory but do not examine the social implications of the legal. Based on textual analysis of televised statements by ʿulamāʾ and interviews with young Muslim Egyptians, I argue that, although some jurists discouraged the laity from joining the 2011 protests, religious youth were not deterred from protesting. Additionally, laypeople who are not well-versed in Islamic law grew suspicious of the shifting opinions of ʿulamāʾ on the legal status of protest, as happened in 2013. In the aftermath of the 2011 and 2013 movements, the moral capital of several Azhari scholars decreased as did the moral-legal purchase of the fatwās they issued.

Shi'ism Revisited

2021 ◽  
Author(s):  
Liyakat Takim
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Legal Theory ◽  
Public Attention ◽  
Ongoing Debate ◽  
Classical Formulation ◽  
Islamic Legal Theory ◽  
Social Fields ◽  
Western Scholarship ◽  
Muslim Minorities

Contemporary Muslims face the challenge of how a legal system that was formulated in the classical period of Islam can respond to the multitudinous challenges that present-day Muslims encounter. Is there a need for reformation in Islam? If so, where should it begin and in which direction should it proceed? Addressing this gap in Western scholarship, and contributing to the ongoing debate in Islamic scholarship, Shi‘ism Revisited: Ijtihad and Reformation in Contemporary Times (1) explores how modernity has impinged on the classical formulation of Islamic law, and (2) analyzes how Shi‘i jurists have responded to the intersection of shari’a (Islamic law) and modernity. The study is original and groundbreaking in that it seeks to tackle issues such as how Islamic law is being revised by Shi‘i scholars on cases such as human rights, gender equality, the rights of non-Muslim minorities, and reconfiguring the rational and moral basis of Islamic law. Such questions have required scholars to apply ijtihad (independent reasoning) in providing solutions to the pressing questions in the religious and social fields. By examining the principles and application of Islamic legal theory (usul al-fiqh) and reformation in Shi‘ism, as well as the current discourse on juristic hermeneutics and the basis of a new ijtihad, this research addresses topics that have attracted much public attention. Since such issues have been largely neglected by Western scholarship, this book provides a unique analysis of ijtihad and reformation in the Shi‘i world.

Custom and Society in Islamic Criminal Law: A Critical Appraisal of the Maxim ‘al-ʿĀdah Muḥakkamah’ (Custom is Authoritative) and its Sisters in Islamic Legal Procedures

2012 ◽  
Vol 26 (1) ◽  
pp. 75-97 ◽  
Author(s):  
Luqman Zakariyah
Keyword(s):  
Criminal Law ◽  
Critical Appraisal ◽  
Islamic Law ◽  
Legal Theory ◽  
Controversial Issues ◽  
Islamic Legal Theory ◽  
Over Time ◽  
Legal Procedures

Abstract Islamic legal maxims promote the spirit of Islamic law through extrapolation of the texts. The legal maxim of al-ʿādah is one of the five basic legal maxims agreed upon among classical Muslim jurists. Despite the wide acceptability of custom in Islamic legal theory and its authoritativeness in application, one of the controversial issues surrounding the use of custom (al-ʿādah) is whether, by law, rulings can be changed over time when customs have changed. Thus, this article aims to examine the effect of custom in rulings related to ḥudūd and qiṣāṣ (fixed and retaliative punishments) in Islamic law and whether such rulings can be changed over time as custom changes and, if they can be changed, to what extent can such changes be made and to what effect do such changes affect the sanctity of the Qurʾān and Ḥadīth texts.

On the Development of Custom as a Source of Law in Islamic Law:

1997 ◽  
Vol 4 (2) ◽  
pp. 131-155 ◽  
Author(s):  
Gideon Libson
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Classical Period ◽  
Secondary Sources ◽  
Islamic Legal Theory ◽  
The Status ◽  
Legal Fictions

AbstractAlthough classical Islamic legal theory did not recognize custom as a source of law, Muslim jurists — in particular, the ḥanafīs — discussed the status of custom already in the pre-classical period. Custom was incorporated into Islamic law in a variety of ways: by including certain practices in the category of sunna or ijmāʾ; by appealing to judicial preference (istiḥsān) and to secondary sources of law, such as fatwās; and by using legal fictions (ḥiyal). Because these methods were not always adequate to deal with the questions that specific practices presented to the jurists, there was an increasing tendency among later ḥanafī jurists to recogize custom as a source of law.

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