scholarly journals The Theory of Higher Objectives and Intents of Islamic Law (Maqasid Al-Shariah) as One of Instrument of Ijtihad According to Imam al-Shatibi in Al-Muwafaqat Fi Ushli Al-Syari`ah

2021 ◽  
Vol 23 (2) ◽  
Author(s):  
Al Ikhlas Al Ikhlas ◽  
Desi Yusdian ◽  
Alfurqan Alfurqan ◽  
Murniyetti Murniyetti ◽  
Nurjanah Nurjanah
Keyword(s):  
Islamic Law ◽  
The Third ◽  
The Law ◽  
Holy Book ◽  
Divine Law

As written in Al-Muwâfaqât Fi Ushûli Al-Syari'ah, Imâm Al-Shatibi explained that every divine law (the command of Allah) must be prescribed on purposes and objectives. The desired objective of law is to fulfill for the benefit of humankind. Imâm Al-Shatibi divided the higher objectives of law into two categories: (1) the objectives of the Lawgiver (Allah as the Lawgiver), and (2) the human objectives (the benefits that refer to human as the doer of Law). The human objectives are defined in three scales: from the ‘essential’ (dharûriyat), to the ‘necessary’ (hajiyât), and to the ‘complementary’ (tahsiniyât). Furthermore, Imam Al-Shatibi explained that there are four steps in understanding the human objectives. The first is understanding maqasid (the objectives) through the purity of the command and prohibitions. Second,it is understanding maqasid through the existence of ‘illah (basis) contained in commands and prohibitions. And the third, understanding the maqasid through the law that related to 'adah (habit) and 'ibadah (worship) which have the main and additional objectives. Fourth, understand the maqasid through silence due to the absence of any occasions or circumstances for further declaration related to the certain matter. In other word, for certain issue, there is no evidence from the Holy book that provides the reasons of the law implementation even though there is a meaning (ma’na) behind the revelation.

scholarly journals Indonesian Jurisprudence: Islamic Law Transformation In Law System Of Indonesia

2020 ◽  
Vol 19 (2) ◽  
pp. 303-318
Author(s):  
Ahmad Edwar
Keyword(s):  
Content Analysis ◽  
Islamic Law ◽  
Analysis Method ◽  
Law System ◽  
The Third ◽  
Library Research ◽  
Content Analysis Method ◽  
The Law ◽  
Definition Of ◽  
Islamic Marriage

INDONESIAN JURISPRUDENCE: ISLAMIC LAW TRANSFORMATION IN LAW SYSTEM OF INDONESIA.: This study discusses about the idea of Islamic law renewal in Indonesia, as well as the figures, and it makes the term of Indonesian Jurisprudence and its formalization into the law system of Indonesia. The purpose of this study is to find the answer of these following points: Firstly, the interpretation or definition of Indonesian Jurisprudence concept; secondly, the figures who proposed Indonesian Jurisprudence and the result of their thoughts; and the third, the formalization of Jurisprudence concept with Indonesian nuance in the law system Indonesia. This study was a library research with a content analysis method. The results of this study are: (1) Indonesian Jurisprudence could be interpreted as a Jurisprudence concept that is more Indonesian local-based; (2) Hasbi As-Shiddiqi and Hazairin are two figures who proposed Indonesian Jurisprudence model, apart from other intellectuals. Hasbi is one of modernists who offered his ideas comprehensively, started from his “Indonesian Jurisprudence” concept until the law renewal including its principle and method. Meanwhile Hazairin offered the development of a new heritage system which interpreted and elaborated based on Al-Qur’an scriptural perception and Sunnah which is not a patrilineal system but bilateral (family model); and (3) formalization of Indonesian Jurisprudence concept produces some ordinance regulation products which are important formally and materially, such as Ordinance of Islamic Marriage Law, and also other rules under the Ordinance, such as Government Law, President Instruction, and Supreme Court Law, as well as Islamic Law Compilation and Sharia Economic Law Compilation

scholarly journals URGENSI TARJÎH DALAM ISTINBÂTH HUKUM ISLAM

2015 ◽  
Vol 10 (1) ◽  
pp. 108-127
Author(s):  
Ainol Yaqin
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Bright Spot ◽  
The Third ◽  
Dead End ◽  
The Dead ◽  
The Law

Tarjîh  is a method tool of istinbâth in Islamic law. The method is formulated by ulama’ ushul to find a bright spot to set Islamic law among the opposite theorems. The existence of the method is very important in choosing strong/pure al-Qur’an texts and Hadits from some of the other Hadits related to the law problems. Therefore, the ulama’ ushul fiqh al-Hanafiyyah, al-Mâlikiyyah, al-Syâfi’iyyah, al-Hanâbilah dan al-Zhâhiriyyah construct steps to take to solve the dead end in ijtihad when they face some contradictory theorems. Al-Hanafiyyah takes four ways to deal with two or more contradictory al-Qur’an texts and Hadits. First, al-naskh (to clear, to cancel), second, al-tarjîh (to strengthen, to favor), third, al-jam’ wa al-tawfiq (to combine, to compromise) and the last is tasâquth al-dalilayn (to break and move to another theorems). While, methods used to deal with the contradictory theorems by al-Mâlikiyyah, al-Syâfî’iyyah, al-Hanâbilah dan al-Zhâhiriyyah is first, al-jam’ wa al-tawfiq bayn al muta’aridlayn bi wajh maqbul (collect and compromise the contradictory theorems from one side), second, al-tarjîh, the third, al-naskh and the last is tasâquth al-dalilayn. Tarjîh can be done by considering some sides, those are, a. Sanad side (The chain of Hadits reader), b. Matan side (Hadits text), c. Law contained in the law side (text or Hadits) and d. translation from other theorems.

scholarly journals The Rights and Obligations of Spouses in Islamic Classic Law

2013 ◽  
Vol 3 (2) ◽  
pp. 183
Author(s):  
Dr.Sc. Juelda Lamçe
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
The Third ◽  
The Past ◽  
Parent Relationship ◽  
The Law

Islamic Law, the third largest global legal system, next to Civil Law and Common Law, has been far -back subject of an increased interest to the academics.  Its main peculiarity is the absorption of theology in the law. There is no clear borderline between juridical and religious regulation. For this reason it is important to understand how certain legal institutes where regulated in the past. In fact, Islamic classic law despite its later evolution is considered the most authoritative legal source, because closest to the Divine Revelation.With regard to the rights and obligations of spouses, they’re conceived in terms of complementary, while their equality is interpreted in terms of moral and spiritual rights and obligations. In order to better comprehend their rights and obligations, it is necessary to analyze the different roles of gender inside the Islamic family.Given the premises, this paper will focus on specific rights and obligations between spouses and with regard to the child-parent relationship. In particular, it will treat the meaning of the supremacy or authority of the man to the woman; the rights and obligations that they have towards the children born in and out of wedlock; the questions on the practice of the polygyny.

Nervous Shock: Is it Available in The Islamic Law of Tort?

2010 ◽  
Vol 1 (1) ◽  
Author(s):  
Abdul Basir bin Mohamad
Keyword(s):  
Mental Illness ◽  
Mental Retardation ◽  
Psychiatric Illness ◽  
Islamic Law ◽  
Physical Injury ◽  
Long Period ◽  
Nervous Shock ◽  
English Law ◽  
The Law ◽  
Divine Law

AbstractAs we know from the discussions amongst Muslim jurists in their writings, they normally highlight the law of qisas and diya as well as ta‘zir for dealing with cases of death and injury resulting from physical tort such as beating, punching, whipping, kicking, slashing, stabbing, snapping, etc. But a question may arise as to death or injury resulting from non‐physical or immaterial torts or, in current legal terminology, nervous shock. Could the case be settled by Islamic law? Nervous shock can also cause mental illness, mental retardation, morbid depression, mental shock, or, in modern terms, psychiatric damage or psychiatric illness, and in that way can also cause someone to suffer a physical injury or death. To resolve this, we have to refer to kinds of law as a yardstick to measure the tortuous liability. It surely falls under human law, even though it is combined with divine law, but human law prevails here. The Muslim jurists have exemplified this law by relating it to qisas and diya in the case of punishment for murder, injury, and wounding. As such, the cases of nervous shock are certainly included in the discussion of qisas and diya in general. In the first part of this paper the discussion on nervous shock focuses on the English law of tort and is then followed by the exploration in Islamic law of tort. As we know, the rule of nervous shock has been practiced and applied intensively in English law over a long period of time, and at the same time the discussion clearly shows that the rule of nervous shock appears in Islam and is not alien to the Islamic law of tort.

scholarly journals Korelasi Sumber Hukum Islam Antara Al Qur’an, Hadits dan Ushul Fiqh

2020 ◽  
Vol 5 (3) ◽  
pp. 441-455
Author(s):  
M. Saefudin Mughni
Keyword(s):  
Islamic Law ◽  
Time Travel ◽  
Research Library ◽  
Word Of God ◽  
Is Research ◽  
Library Research ◽  
The World ◽  
The Law ◽  
Holy Book

Islam is a religion that teaches compassion to all nature, because it has been equipped with a book of the Qur'an as a source of law, in which teaches about the intrinsic life, it is the word of God mandated to his Messenger to be conveyed to his people in order to complete the purpose of his life in the world and to achieve happiness in the eternal hereafter. With time travel, there are some things that can not be found solutions in the Holy Qur'an, therefore the scholars associate the source of Islamic law with other legal sources. This type of research is research library or library research, with documentation methods from various sources of literature. The results of this study showed that in addition to the legal source of the Qur'an is the hadith of the prophet Muhammad SAW, Ijma (the agreement of the scholars in determining the law due to different conditions) and Qiyas (liken a problem to the events contained in the Qur'an and hadith). The source of Islamic law in the form of Ijma and Qiyas must be based on the strong evidences of syar'i namely the Qur'an and al-Hadith, because as good as the guidelines or the handle of life of Muslims to be safe in the world and the hereafter is the holy book of the Qur'an and al-Hadith.

scholarly journals IJMA’ SEBAGAI PENYATUAN PERBEDAAN AWAL BULAN QAMARIAH

2020 ◽  
Vol 1 (1) ◽  
pp. 1-24
Author(s):  
Ahmad Fadholi
Keyword(s):  
Legal System ◽  
Joint Decision ◽  
The Third ◽  
Principal Source ◽  
The Law ◽  
The Times ◽  
Holy Book

The teachings of Islam can be understood, because Islam brought by Prophet Muhammad pbuh. at 14 centuries ago, who was sent to convey Islamic teachings with the holy book, al-Qur’an as the principal teachings of Islam. While the second source is as-Sunnah. Both of them, al-Quran and as-Sunnah, are the principal source of Islamic teachings. Along with the times increasingly complex, the problems in people's lives are more and more undiscovered in these two sources. it is necessary for an ijtihad to finish its problems by way of ijma 'as a method of solving problems of religion. Ijma 'itself is an agreement of the mujtahid at some time after Prophet Muhammad on a syar'i law about a particular event. Events of the law faced by Muslims did’n stop by the death of the Prophet Muhammad pbuh. This problem, both in types and quality, is always developed according with evolution of time. Therefore, alternatives taken to determine the laws of any event are through ijtihad and make decisions together. That joint decision is called ijma ' and is the third argument agreed by sholars to be sources of law. Then by agreement as a third source of law, it have power in the Islamic legal system. The power of ijma' has been suggested by the Prophet in a hadith "La tajtami'u ummati' ala al-dhallah".

Hope Springs Eternal: Reforming Inheritance Law in Islamic Societies

Hawwa ◽  
2019 ◽  
pp. 1-18
Author(s):  
Ahmed Souaiaia
Keyword(s):  
Property Rights ◽  
Islamic Law ◽  
Family Law ◽  
Religious Tradition ◽  
Individual Rights ◽  
Civil State ◽  
Inheritance Law ◽  
Men And Women ◽  
The Third ◽  
The Law

AbstractSoon after the Lajnat al-Hurriyāt al-Fardiyya wa-l-Musāwāt (“Committee on Individual Rights and Equality”) submitted its report in June 2018 to the president of Tunisia, Beji Caid Essebsi, the latter ordered the legislature to amend the 1956 family law to achieve equality between men and women in inheritance and property rights. Although the authors of the report had written forcefully about how Islamic texts (the Qurʾan and sunna) are compatible with modern law, some of their recommendations suggested a broad inclination to reform the law outside religious tradition and as part of the exigencies of the civil state. These events and ideas brought to the fore questions such as whether classical Islamic law is reformable or obsolete. This paper aims to show that interpretations of Islamic texts that result in radically different inheritance laws have existed since at least the third Islamic century. Inequality has persisted always for political and institutional reasons, not substantive ones.

TINJAUAN HUKUM FIKIH TERHADAP HADIAH TABUNGAN DAN GIRO DARI BANK SYARI'AH

ALQALAM ◽  
2013 ◽  
Vol 30 (1) ◽  
pp. 1
Author(s):  
Muhammad Nadratuzzaman Hosen ◽  
Deden Misbahudin Muayyad
Keyword(s):  
Islamic Law ◽  
Islamic Banks ◽  
Islamic Bank ◽  
Literature Reviews ◽  
The Gift ◽  
The Status ◽  
The Law

This article explains about the Islamic law of gift from Bank to customers related to saving and gyro accounts of Islamic Bank. The Islamic Banks give gift directly  and  indirectly  to  new  ettstomers  and  old  customers  through drawing  (qur'ah) or lottery and non-drawing. There are disputes (ikhtilaf) among Islamic Law  Experts (Fuqaha’) about the status of law when Islamic Banks give the gift. Hanafi and  Syafi'i  Schools  of thought  opined  that  the gift  can  be given  to  the customers as long as there is no agreement between bank and costomers meanwhile the banks still have a debt to consumers, this is permissible. Maliki and Hanbali schools opined that the gift is not permissible during the time of borrowing and lending. Majority Islamic Exsperts allow to give gift after banks have already paid­ back the debt to consumers as long as there is no agreement between bank and cusiomers, but Maliki School do not allow lo give gift at that condition. Also, for giving gift should free from gambling or elements of gambling (muqamarah).  The method of this article is using literature reviews from classical Islamic Law's books and contemporary Islamic law's books related to drawing or lottery and gambling, meanwhile the aims if this mticle are to investigate the law status if gift from bank to new customers and old customers with direct and indirect ways.   Keywords : gift, saving and gyro accounts, disputes, drawing and elements of gambling

NIKAH SIRI DALAM TINJAUAN HUKUM TEORITIS DAN SOSIOLOGI HUKUM ISLAM INDONESIA

2018 ◽  
Vol 11 (1) ◽  
pp. 60-78
Author(s):  
Aidil Alfin ◽  
Busyro Busyro
Keyword(s):  
Significant Influence ◽  
Islamic Law ◽  
Muslim Community ◽  
Muslim Society ◽  
The Law

The differences of laws in marriage registration have generated argumentative conflicts among the ulama. Some of them agree and the others disagree. Ulama who agree say that proscribing secretly marriage (nikah siri) is in accordance to Islamic law. Even though the regulation about marriage registration has been written in The Indonesian Act No. 1 of 1974 on Marriage and in the Compilation of Islamic Law in Indonesian, the practice of secret marriage is still existed among Indonesian Muslim society. They base their practices on what some of local ShafiiyahUlema say all the time that this kind of marriage is in accordance to shari’ah. It is common to say that Shafi’ischool of law is the largest shari’ahschool of law in Indonesia. In the sociology of Islamic law, most of the scholars in Indonesia who adhere to the Shafi'i school and also most of the Indonesian Muslim community adhere to the same school, may have a significant influence on the constraints of reform of Islamic law related to the registration of marriages in particular and other matters about marriage in general contained in the Law No. 1 of 1974 and the Compilation of Islamic Law in Indonesia.

Ragam Bangunan Perundang-Undangan Hukum Keluarga di Negera-Negara Muslim Modern: Kajian Tipologis

2018 ◽  
Vol 11 (1) ◽  
pp. 49-60
Author(s):  
Miftahul Huda
Keyword(s):  
Saudi Arabia ◽  
United Arab Emirates ◽  
Islamic Law ◽  
Family Law ◽  
Marriage Law ◽  
The Third ◽  
Muslim Countries ◽  
Fourth Type ◽  
Modern Family ◽  
The Difference

The reality of the difference in applying Islamic law in the context of marriage law legislation in modern Muslim countries is undeniable. Tunisia and Turkey, for example, have practiced Islamic law of liberal nuance. Unlike the case with Saudi Arabia and the United Arab Emirates that still use the application of Islamic law as it is in their fiqh books. In between these two currents many countries are trying to apply the law in their own countries by trying to bridge the urgent new needs and local wisdom. This is widely embraced by modern Muslim countries in general. This paper reviews typologically the heterogeneousness of family law legislation of modern Muslim countries while responding to modernization issues. Typical buildings seen from modern family law reforms can be classified into four types. The first type is progressive, pluralistic and extradoctrinal reform, such as in Turkey and Tunisia. The second type is adaptive, unified and intradoctrinal reform, as in Indonesia, Malaysia, Morocco, Algeria and Pakistan. The third type is adaptive, unified and intradoctrinal reform, represented by Iraq. While the fourth type is progressive, unifiied and extradoctrinal reform, which can be represented by Somalia and Algeria.

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