scholarly journals Sharia

1996 ◽  
Vol 13 (1) ◽  
pp. 115-117
Author(s):  
Mohamed Taher
Keyword(s):  
Islamic Law ◽  
Criminal Procedure ◽  
Reading Public ◽  
Marriage And Divorce ◽  
English Reading ◽  
The Law ◽  
Law Of Evidence ◽  
The Mind

This book is a good analysis of the Shafi'i school of Islamic law,and the author is to be commended for his successful presentation of itssalient features to the English-reading public. He has divided his bookinto an introduction to the school, the law of marriage and divorce, thelaw of property and related matters, the law of evidence and proceduralmatters, and the law of crimes and criminal procedure. In addition tothese major topics, Dalvi deals with various lesser known features, suchas: 1. On the issue of marriage and divorce, Dalvi points out: "By stress­ing the need to establish the intention behind divorce, making such causes as inability to maintain a cause for the wife to ask for a divorce, making redundant divorce pronouncement under the influence of drink, indicating the necessity to know one another prior to the marriage, choosing of wit­nesses agreeable to the wife, stressing the responsibility of the husband to provide for maintenance to the divorced wife ... all go to show how seri­ous concern was in the mind of Imam Shafi'i for the protection of the rights of the women." (p. 240) 2. "The Shafi'i School holds that it is forbidden to [hold] court-sittings in a mosque" (p. 154). The author states that "the mosque being the 'House of God,' it was felt that if by any chance a judge delivered a judgment which has resulted in any injustice unknowingly too, it would not be behoving with God's desire to meet justice. Hence the mosque was not made a house of law." (p. 154) ...

scholarly journals The Danger for an Underestimation of Necessary Precautions for the Admissibility of Admissions in Section 219A of the South African Criminal Procedure Act 51 of 1977

2019 ◽  
Vol 31 (1) ◽  
pp. 81-120
Author(s):  
’Mampolokeng ’Mathuso Mary-Elizabet Monyakane
Keyword(s):  
South African ◽  
Criminal Procedure ◽  
Prima Facie ◽  
The South ◽  
Simple View ◽  
The Law ◽  
Criminal Matters ◽  
Law Of Evidence

AbstractThe Prima facie view regarding the admissibility of admissions, as evidence, in criminal matters is that, to admit admissions as evidence, the court requires a single consideration as to whether the admission was made freely and voluntarily. Without too much ado, the simple view to this understanding presupposes that admission of an admission as evidence against its maker is of a lesser danger compared to the admission of a confession. The admissibility of confessions against their makers does not come as easily as that of admissions. There are many prescribed requirements to satisfy before confessions are admitted as evidence. This comparison has led to a questionable conclusion that requirements for the admissibility of admissions are of a less complexity equated to the requirements for the admission of confessions. This paper answers the question whether an inference that the requirements for the admissibility of admissions are of a less complexity compared to the requirements for the admission of confessions is rational? It equates this approach to the now done away with commonwealth states rigid differentiation perspective. In the 1800s the commonwealth states, especially those vowing on the Wigmorian perspective on the law of evidence, developed from a rigid interpretation of confessions and admissions and adopted a relaxed and wide definitions of the word, “confession.” To this extent there was a relaxed divide between confessions and admissions hence their common classification and application of similar cautionary rules. The article recounts admissibility requirement in section 219A of the South African Criminal Procedure Act 51 of 1977 (CPA) (Hereinafter CPA). It then analyses Section 219A of the CPA requirement in the light of the rationale encompassing precautions for the admission of confessions in terms of 217(1) of the CPA. It exposes the similarities of potential prejudices where confessions and admissions are admitted as evidence. It reckons that by the adherence to this rigid differentiation perspectives of confessions and admissions which used to be the practice in the commonwealth prior the 1800s developments, South African law of evidence remains prejudicial to accused persons. To do away with these prejudices this article, recommends that section 219A be amended to include additional admissibility requirements in section 217(1). In effect it recommends the merging of sections 217(1) and 219A of the CPA.

Rhetoric and Law

2015 ◽  
pp. 396-408
Author(s):  
Lorna Hutson
Keyword(s):  
Sixteenth Century ◽  
Common Law ◽  
Criminal Procedure ◽  
Legal Development ◽  
Major Development ◽  
The Law ◽  
Civil Cases ◽  
Reasons For Decisions ◽  
Law Of Evidence

This chapter reexamines the older scholarly consensus that humanist rhetoric had no great effect on legal development in sixteenth-century England. It argues that the humanist emphasis on topical invention led to a blurring of distinctions between rhetoric and dialectic, and that key to both were artificial proofs derived from “circumstances,” “accidents,” and “predicaments.” It shows first how circumstances, employed in criminal procedure, helped develop the law of evidence and then goes on to show how this terminology was used to shape the “reasons” for decisions in highly significant civil cases such as Calvin’s Case (1608). If a major development of English common law in this period is its new emphasis on the reasoned decisions of courts as a source of law, this article proposes that it was topical invention that shaped the “reasons” and, hence, the law.

The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

1999 ◽  
Vol 33 (3) ◽  
pp. 678-719 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Social Background ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Evidence ◽  
The Impact

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

scholarly journals Islamization of Law of Evidence in Pakistan with Specific Reference to Testimony of a Woman

rahatulquloob ◽  
2020 ◽  
pp. 01-12
Author(s):  
Dr. Hafiz Muhammad Siddique ◽  
Dr. Muhammad Atif Aslam
Keyword(s):  
Islamic Law ◽  
Primary Objective ◽  
Primary Sources ◽  
Specific Reference ◽  
Legal Provisions ◽  
The People ◽  
Administration Of Justice ◽  
The Law ◽  
Law Of Evidence

The subject matter of any case contains many facts proved by anyone of the parties to have a decision in his favour from a court of law. The primary objective of the law of evidence is to prescribe the rules to prove the facts of the case assisting the court of law in any case. The Law of Evidence forms a foundation for administration of justice in every legal system. This is considered a system of rules for disputed questions of fact in judicial inquiries. This law determines and helps to enforce the liability or grant aright on the basis of facts presented in the court of law. Islamic Law of Evidence is manifest due to the Islamic System of administration of justice and it rules are framed by the Law giver on the basis of primary sources of Islamic Law whereas the rules of other evidence law are made by the people. The current paper discusses the process of Islamization in Islamic Republic of Pakistan. It focuses on the Law of Evidence that how it is Islamized. It also highlights the specific legal provisions of Pakistani Law of Evidence were Islamized and indicates the role of some other constitutional institutions of Pakistan in Islamization of Law of Evidence. 

scholarly journals Poligami di Indonesia dalam perspektif CEDAW dan mazhab Shafi’i

2017 ◽  
Vol 17 (1) ◽  
pp. 61
Author(s):  
Qurrotul Ainiyah
Keyword(s):  
Gender Equality ◽  
Islamic Law ◽  
Religious Texts ◽  
Single Person ◽  
The World ◽  
The Law ◽  
The Mind

Convention on the Elimination of All Forms of Discrimination against Women or CEDAW’s paradigm ofthought is gender equality, women should be given rights as men in principles and rights in marriageincluding marriage approval, marriage dismissal, marriage guardian, and so on. Discrimination is anattitude that opposite of justice and must be eliminated. The source of the CEDAW’s concept paradigmof thought is mind, lustand feeling, and then the concept of CEDAW considered rational andMaslahah (good) enough. The Shafi’i paradigm is guiding the mind and heart based on religious texts.The religious prohibition have Madharat in the world and in the after life. If the world have not seen theMadharat, it will be feltin the after life. The Maslahah principle in CEDAW included al-Maslahah al-Mulghah, as it is contrary enough to the teachings of Islamic law contained in religious texts. In fact, anylaw that is contrary to Islamic law governed by religious texts is not Maslahah but Madharat and shouldbe abandoned even it is logical and good enough by the reason of thought. CEDAW uses Nash’sGuidelines that understand the Qur’an verse by considering Siyaq al-Kalam, so it interprets ‘fair’bythough of mindor in love and affection. Polygamy will no longer mu’asharah bi al-ma’ruf by causing thesuffering of wives. With the Sad al-Dhari’ah consideration, it will change the polygamy law from allowedor mubah to haram lighoirihi. Shafi’i madhhab uses the dalalah ‘ibarah’ which understands the Qur’anverse without considering siyaq al-kalam. The law of Haram li ghairihi on the permissibility of Polygamybased on Sad al-Dhari’ah is not applicable generally, and means that polygamy can not be judged as haramli ghairihi but keep see the conditions with the consideration of the single person condition.

Application of law of evidence to Islamic banking with special reference to Malaysia

2017 ◽  
Vol 10 (4) ◽  
pp. 503-518 ◽  
Author(s):  
Aishath Muneeza
Keyword(s):  
Special Reference ◽  
Expert Opinion ◽  
Design Methodology ◽  
Islamic Law ◽  
Case Law ◽  
Islamic Banking ◽  
Content Type ◽  
Application Of Law ◽  
The Law ◽  
Law Of Evidence

Purpose This research aims to deal with the law of evidence invoked in Islamic banking cases reported in Malaysia from 1983 to 2015 and determine whether the invoked provisions of the statute in the case law have any conflicts with Islamic law that are threatening the development of Islamic banking in Malaysia. Design/methodology/approach The methodology used in this research is assessing the implication by studying the provisions of the law of evidence that has been invoked in the reported case law. Findings It is evident from this research that following are the evident conflicts found in the Evidence Act 1950. In this arena, the following changes are significant for sustaining Islamic banking in Malaysia. Expert opinion under Section 45 of the Evidence Act 1950 should be amended such that in Islamic banking, under this Act, expert opinion can be sought by the court. The rule and exceptions of parol evidence in Sections 91 and 92 of the Evidence Act 1950 need to be amended such that in Islamic banking matters, anything that is contrary to Sharicah is mentioned in the contract; this amendment will be an exception to the parol evidence rule on the grounds that the written Islamic contract can be amended or set aside depending on the circumstances of the case. Originality/value It is anticipated that this research will assist jurisdictions to understand that even adjective laws applicable to Islamic banking will be harmonized with Islamic law. This is because the prefix Islam attached to the term banking is not merely a namesake, but it means more than that, i.e. all aspects of Islamic banking will be consistent with Islamic law.

scholarly journals Maqāṣid Al-Sharī‘at: The Main Reference and Ethical-Spiritual Foundation for the Dynamization Process of Islamic Law

2020 ◽  
Vol 20 (2) ◽  
Author(s):  
Iffatin Nur ◽  
Syahrul Adam ◽  
M. Ngizzul Muttaqien
Keyword(s):  
Driving Force ◽  
Islamic Law ◽  
Social Changes ◽  
Spiritual Power ◽  
Library Research ◽  
Primary Reference ◽  
The Law ◽  
The Mind ◽  
Supreme Principle

The two primary and significant roles of maqāṣid al-sharī‘at worth studying are directive and defensive systems. The directive system, for instance, puts the maqāṣid al-sharī‘at as the main reference for any reformation or changing processes and dynamization of the Islamic law, whereas the latter places it as the supreme principle of morality that provides the foundation and ethical-spiritual power for Muslim Societies when they interact with the law. With these two roles, the maqāṣid al-sharī‘at can serve as a driving force to create future changes towards a more constructive and humanistic society. This study is library research which examines the maqāṣid al-sharī‘at from the time of Prophet Muhammad (Peace be Upon Him) to this very day. It aims at elaborating the position of maqāṣid al-sharī‘at as the primary reference and ethical-spiritual foundation for the dynamization process of Islamic law in dealing with contemporary issues. It also examines the concept of maqāṣid al-sharī‘at and analyzes the flexibility, adaptability, and dynamic of Islamic law. In addition, it is intended to open the mind of those who claim that Islamic law is so immutable, doctrinal, eternal, and final. This means that Islamic law is assumed to be inadaptable to various forms of social changes and modernization.     AbstrakPeran paling utama dan penting maqāṣid al-sharī‘at yang patut dipelajari adalah sistem direktif dan pertahanan. Sistem direktif, misalnya, menempatkan maqāṣid al-sharī‘at sebagai rujukan utama untuk setiap reformasi atau proses perubahan dan dinamisasi hukum Islam, sedangkan yang terakhir menempatkannya sebagai prinsip moralitas tertinggi yang memberikan landasan dan kekuatan etis-spiritual untuk masyarakat Muslim ketika mereka berinteraksi dengan hukum. Dengan dua peran tersebut, maqāṣid al-sharī‘at dapat menjadi pendorong perubahan masa depan menuju masyarakat yang lebih konstruktif dan humanistik. Penelitian pustaka ini meneliti maqāṣid al-sharī‘at dari masa Nabi Muhammad Saw. hingga hari ini. Hal ini bertujuan untuk menguraikan posisi maqāṣid al-sharī‘at sebagai acuan utama dan landasan etis-spiritual bagi dinamisasi proses hukum Islam dalam menghadapi persoalan kontemporer. Ini juga mengkaji konsep maqāṣid al-sharī‘at dan menganalisis fleksibilitas, kemampuan beradaptasi, dan dinamika hukum Islam. Selain itu, dimaksudkan untuk membuka pikiran mereka yang menyatakan bahwa hukum Islam begitu lestari, doktrinal, abadi, dan final sehingga dianggap tidak dapat beradaptasi dengan berbagai bentuk perubahan sosial dan modernisasi yang membawa banyak isu kekinian.

scholarly journals Concerning the issue regarding legal nature of electronic (digital) evidence

2020 ◽  
pp. 74-81
Author(s):  
M. I. Voronin
Keyword(s):  
Proof Theory ◽  
Information Sources ◽  
Digital Technologies ◽  
Criminal Procedure ◽  
Digital Evidence ◽  
New Information ◽  
Legal Nature ◽  
The Law ◽  
Law Of Evidence

Current developments in the area of digital technologies and, as a consequence, the emergence of new information sources cause the necessity of implementation of special provisions regarding electronic (digital) evidence in the law of criminal procedure. Nevertheless, before amending law of evidence regulations, the legal nature of such proof shall be defined. It is also necessary to comprehend how this new evidential source correlates with basic grounds of proof theory, other provisions of criminal procedure and on the whole — other branches of law.

scholarly journals دور قانون الأحوال الشخصية السوداني للمسلمين في حماية حقوق المرأة

2022 ◽  
Vol 6 (1) ◽  
Author(s):  
سليمان ، محمد سليمان النور
Keyword(s):  
Islamic Law ◽  
Marriage And Divorce ◽  
Strong Trend ◽  
The Law ◽  
Personal Law ◽  
Women Rights

women rights in regard to marriage and divorce, which had been endorsed by Sudanese personal statutes for 1991, also the actions to protect theses rights , with a comparing with Islamic law .   The research found that the Sudanese personal law has a strong trend towards expanding the adoption of most forms of these rights , even those which disputable among scholars.   In regarding to the protection of these rights, the mere letter of the law is considered as the basis upon which women can claim to get judiciary protection .   In addition to that the law includes many actions to protect these rights .   which have been detailed in the search.

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