scholarly journals Analogical Reasoning (Qiyas) and the Commodification of Women: Applying Commercial Concepts to the Marital Relationship in Islamic Law

ICR Journal ◽  
2011 ◽  
Vol 3 (1) ◽  
pp. 154-180
Author(s):  
Mohammad Omar Farooq
Keyword(s):  
Analogical Reasoning ◽  
Islamic Law ◽  
Marital Relationship ◽  
Social Institution ◽  
Islamic Jurisprudence ◽  
Impact On Family ◽  
Islamic View ◽  
Central Social

Analogical reasoning (qiyas) is one of the four sources of Islamic jurisprudence. It is recognised that the outcomes of qiyas are generally speculative in nature. However, a vast portion of the corpus of Islamic law is derived based on qiyas. One such area is marital relationship and mutual rights of the spouses. In several areas of marital relationship and mutual rights, the Islamic jurisprudents have applied concepts and tools that are related to commerce or business (tijarah). Such terminologies include bay’ (exchange/buy/sale) and ijarah (lease). This article examines such employment of business-related framework in the area of marital relationship and mutual rights. Based on both classical and post-classical legal sources, the author analyses the legalistic tendency underlying the legacy of the traditional Islamic law, as exemplified in using business-related framework in an overreaching manner. This article also offers an explanation of how the traditional Islamic view on slavery might be closely connected to this commodified view. Furthermore, it sheds light on how such commodification can impact on family as a central social institution.

COMPARATIVE STUDY ON GONO GINI'S ASSETS DUE TO A DEATH ACCORDING TO THE ISLAMIC LAW AND POSITIVE LAW

2019 ◽  
Vol 1 (1) ◽  
Author(s):  
Pardan Syafrudin
Keyword(s):  
Comparative Study ◽  
Common Property ◽  
Islamic Law ◽  
Positive Law ◽  
Community Property ◽  
Communal Property ◽  
Islamic Jurisprudence ◽  
Legal Restriction ◽  
The Common ◽  
Husband And Wife

The Common properties (community property) is an asset that the husband and wife acquired during the household lifes, which both of them is agree that after united through marriage bonds, that the property produced by one or both of them will be common property. It shows, that if there's an agreement between husband and wife before marriage (did not to unify their property), then the property produced both will not become a joint treasure. Thus, if a husband or wife dies, or divorces, then the property owned by both of them can be distributed in accordance with their respective shares, another case when the two couples are not making an agreement, then the property gained during marriage bonds can be divided into types of communal property. In Islamic law, this kind of treasure is not contained in the Qur'an or Sunnah. Nor in Islamic jurisprudence. However, Islamic law legalizes the existence of common property as long as it is applicable in a society and the benefit in the distribution of such property. In contrast to the positive law, this property types have been regulated and described in the Marriage Law, as well as the Islamic Law Compilations, which became the legal restriction in the affairs of marriage in force in Indonesia. In this study, the author tries to compile the existence of common property according to the Islamic law reviews and positive law.

Intentions and their Effects on the Legality of Dispositions and Contracts

2002 ◽  
Vol 4 (1) ◽  
pp. 130-141
Author(s):  
Abdullah Muhammad al-Shami
Keyword(s):  
Basic Principle ◽  
Islamic Law ◽  
Human Action ◽  
Basic Principles ◽  
Human Actions ◽  
Special Place ◽  
Legal Contract ◽  
Islamic Jurisprudence ◽  
Legal Opinions ◽  
The Right

In Islamic law judgements on any human action are usually evaluated in terms of the intention involved. Accordingly, the rules of substantive issues have to be accommodated under the basic principles of Islamic jurisprudence. The understanding of these principles by the juristic scholar is highly rewarding because it will lead the muftī to the right path in deriving legal opinions from the original sources. The basic principle of Islamic jurisprudence, which stipulates that ‘all actions depend on intentions,’ has played an important role in the construction of Islamic jurisprudence. Moreover, this rule has a special place in the theory of Islamic legal contract. So what is the effect of intention in the validity of human actions and legal contracts? It is known that pure intention has significant effects on spiritual worship and legal contracts of transaction. It also gives guidance for earning rewards from Almighty Allah. This article concentrates on the effect of intention in perpetual worship, the concept of action and intention in Islamic legal works, the kind of contract with all its components, and the jurists' views on the effects of intention in human action and legal contract along with their discussion and counter-arguments.

Keadilan Distributif atas Pembagian Harta Bersama dalam Perkawinan bagi Keluarga Muslim di Indonesia

2018 ◽  
Vol 11 (1) ◽  
pp. 35-48
Author(s):  
Siah Khosyi’ah
Keyword(s):  
Common Property ◽  
Islamic Law ◽  
Married Couples ◽  
Dropping Out ◽  
Legal Cases ◽  
Islamic Jurisprudence ◽  
Marital Property ◽  
Joint Property ◽  
Husband And Wife ◽  
Muslim Scholars

The division of marital joint property after the breakup of marriage, whether dropping out of marriage due to divorce or due to death, is a new thing in Islamic jurisprudence (fiqh). This is because the concept of mutual treasure is not known in the books of classical Islamic jurisprudence of Muslim scholars of the schools at their times, in which their work are always made as referral in the legal cases up to the present days. In Indonesia, the distribution of common property is regulated in the Compilation of Islamic Laws Articles 96 and 97, which stipulate the rules of distribution of joint property for married couples whose married are off as a result of divorce or death. Article 97 of the Compilation of Islamic Law actually provides an overview of the flexibility of the distribution of common marital property, including in certain cases because the article is regulating (regelen) rather than forcing (dwigen), so that the division is not absolutely divided equally between husband and wife, and casuistically the provisions of that article may be disregarded.

KOMPETENSI DAN YURISDIKSI HUKUM ISLAM DALAM PERSPEKTIF FILSAFAT HUKUM ISLAM

2020 ◽  
Vol 7 (2) ◽  
pp. 139-155
Author(s):  
Juli Amalia Nasucha
Keyword(s):  
Islamic Law ◽  
Social Institution ◽  
Two Dimensions ◽  
Political Asylum ◽  
Constitutional Politics

Some of the themes discussed in this study include: knowing the miniature of Sharia, the field of Fiqh, Islamic governance, and Political Asylum. Some of the conclusions generated from the discussion regarding the Competence and Jurisdiction of Islamic Law include: First, it is necessary to know that there are two dimensions in Islamic law which are closely related to each other, namely the divine dimension and the Insaniyah dimension. Second, as a derivation of the two dimensions contained in Islamic law, then Islamic law is divided into two parts, namely Islamic law as a product of Law / Fiqh or fiqh as a science, while the second is law as a social institution. Third, fiqih as a social institution This then gives rise to jurisdiction in applying Islamic law so that the next discussion that becomes important is the concept of constitutionality in Islam with all its articulations concerning Islamic constitutional politics.

scholarly journals QARDHUL HASAN DALAM PERSFEKTIF HUKUM ISLAM PADA BAITUL MAAL WA TAMWIL (BMT) DAN IMPLEMENTASINYA

2019 ◽  
Vol 1 (1) ◽  
pp. 44-58
Author(s):  
Muhamad Bisri Mustofa ◽  
Mifta Khatul Khoir
Keyword(s):  
Financial Institutions ◽  
Islamic Law ◽  
Financial Institution ◽  
Social Institution ◽  
Small Communities ◽  
Economic Law ◽  
Potential Source ◽  
Islamic Financial Institutions

Abstract In the implementation of Islamic Financial Institutions such as the Baitul Maal wa Tamwil (BMT) there are various ways of collecting funds and channeling funds. Funds are collected through wadi'ah deposits and deposits. While the distribution of funds is done by murabahah, mudharabah, musyarakah, rahn (pawn), ijarah, ijarah multijasa and qardhul hasan financing. Qardhul Hasan's financing is the orientation of the function of the Islamic Financial Institution (Baitul Maal Wa Tamwil) as a social institution. Qardhul hasan is a soft loan given on the basis of mere social obligations. In this case the borrower is not required to return anything except the amount borrowed. In Qardhul Hasan financing there are pillars and conditions, namely the perpetrator of the contract consisting of muqtaridh (borrower), muqridh (lender), qardh (fund), shighat ijab and qabul willingness for both parties and funds used for something useful and lawful. Qardhul Hasan is an activity to achieve a predetermined goal or target by the relevant Islamic financial institutions. The mechanism for implementing Qardhul Hasan is solely aimed at providing assistance to meet the needs of small communities. Thus it can be seen that the form of borrowing through Qardhul Hasan is in accordance with the principles of sharia economic law, the potential source of Qardhul Hasan's funding is quite large if it is utilized and managed optimally and its implementation is very useful for the community. Keywords: Qardhul Hasan, Islamic Law, BMT

scholarly journals Analysis of Wakaf and Maqashid Syari'ah Law on the Development of Wakaf Property in Lhokseumawe City

2021 ◽  
Vol 3 (1) ◽  
pp. 224-231
Author(s):  
Yasir Nasution ◽  
Alyasa’ Abubakar ◽  
Kafrawi
Keyword(s):  
Data Collection ◽  
Islamic Law ◽  
Legal Research ◽  
Government Regulations ◽  
Theoretical Concepts ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
The Law ◽  
Research Show

The development of waqf assets in the form of adding the function of waqf is a new phenomenon in the problems of Islamic law jurisprudence even in positive law in Indonesia. In national law (positive), Indonesia has regulated this issue with the existence of laws and government regulations regarding waqf both movable and immovable waqf assets, even in its development every property in waqf must have an Deed and / or certificate. Whereas in Islamic jurisprudence, the development of waqf assets in the form of additional functions is one of the problems that can be said to be new, it needs legal conclusions and even has to be seen from various theoretical concepts such as maqashidu sharia. Therefore this research will examine the issue of developing waqf assets based on the Waqf Law and maqashid syari'ah. This research is an empirical legal research using a sociological legal approach, with data collection through documentation and interviews. The results of the research show that the development of waqf assets is permitted according to the law, but with the stipulated conditions, besides that the development of waqf assets is also permissible in Islamic jurisprudence as long as it is solely for reasons in accordance with the concept of maqasidu syari'ah and the point is to seek maslahat.  

scholarly journals Diskursus Gender Dalam Hukum Islam

2018 ◽  
Vol 2 (1) ◽  
Author(s):  
Mesraini Mesraini
Keyword(s):  
Islamic Law ◽  
Primary Source ◽  
Western World ◽  
Men And Women ◽  
Islamic Studies ◽  
Gender Discourse ◽  
Islamic Jurisprudence

Abstract:Gender discourse is an issue that has its distinct challenges in Islamic studies. This is due to the notion that gender discourse emerged from the western world and is also considered less linear with Islamic studies. The main cause of this impression is due to a lack of proportional understanding. Gender does not actually treat a person on the basis of sex, but on one's competence. If the gender approach is biological-natural and irreversible, then the gender approach is constructive-social, not natural, and thus can be altered. This paper argued that Qur'an Hadith as the primary source of Islam ensures that in the issues of position, worship, and law, men and women have equal position. Nonetheless, some aspects of fiqhiyah (Islamic jurisprudence) as an implementation of the primary source's understanding are still considered biased. The differences of thinking, the culture of society, and the challenges faced by imam fiqh (Islamic jurisprudence leaders) contribute to gender biasKeywords: Gender, Islamic Law, Fiqh Abstrak: Wacana gender merupakan isu yang memiliki tantangan tersendiri dalam kajian keislaman. Di samping lahir dari dunia Barat, wacana ini dipandang kurang linier dengan kajian keislaman. Kesan ini cenderung didasarkan atas pemahaman yang kurang proporsional. Gender bukanlah memperlakukan seseorang atas dasar jenis kelamin, tetapi atas kompetensi seseorang. Jika pendekatan jenis kelamin itu bersifat biologis-kodrati dan tidak dapat diubah, maka pendekatan gender bersifat konstruk-sosial, bukan kodrati, dan dapat diubah. Sumber primer Islam, seperti Alquran Hadits, memastikan dalam persoalan kedudukan, ibadah, dan hukum antara laki-laki dan perempuan memiliki posisi yang sama. Namun, sebagian dari aspek fiqhiyah sebagai implementasi atas pemahaman sumber primer itu dipandang masih bias. Perbedaan pemikiran, budaya masyarakat, dan tantangan yang dihadapi oleh para imam fiqh berkontribusi atas bias gender.Kata Kunci: Gender, Hukum Islam, Fiqh

scholarly journals Otoritas dan Gerakan Keagamaan Daengguru: Studi Sejarah Islamisasi di Sulawesi Selatan

2020 ◽  
Vol 11 (2) ◽  
pp. 67-91
Author(s):  
Mustari Bosra
Keyword(s):  
Social System ◽  
Islamic Law ◽  
Social Institution ◽  
Integration Pattern ◽  
System A ◽  
South Sulawesi ◽  
The Social ◽  
Almost All ◽  
The Village ◽  
Central Level

This paper is about the Islamization movement of the kingdoms in South Sulawesi, sointegrated sara 'is into a social institution called pangadereng (Bugis) angadakkang (Makassar). To ensure the upholding of Islamic law, which has been integrated into the social system, a religious bureaucracy (Islam) known aswas formed sara '. The royal bureaucratic officials who handle this institution, from the central level to the village or village level are called parewa sara ', which in this study uses the term daengguru. This integration pattern was developed in almost all Islamic kingdoms in South Sulawesi. Adat has its own field and sharia controls its own field. One another should not disturb each other. When the King of Bone La Maddarremmeng was about to confront Islam and customs, he was opposed by all parties. When Arung Matowa Wajo declared a strong Islamization, he was also evicted from his position.

scholarly journals ARABIC: تغيير الفتوى بمقتضيات الزمان والمكان

rahatulquloob ◽  
2021 ◽  
pp. 1-13
Author(s):  
Dr. Abdul Wadood Abed ◽  
Dr. Hedayatullah Modaqiq
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Scientific Development ◽  
Spatial Factors ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
Temporal And Spatial ◽  
The One

Islamic law, by having features in its principles that are fixed and variable, expresses its authority in any situation and time. Of course, this feature reflects the unique legislative miracle of Islam itself. The source of Islamic law is divine and heavenly, so it has always descended directly through the revelation of Allah Almighty, the Lord of the worlds, and has been arranged according to His wisdom and providence and has been considered in the context of time and place according to their nature and needs. Changing of a fatwa is the change of one rule in a specific issue to another one along with a Sharia cause that agrees with the aims and purposes of the Sharia. Therefore, there is no change in the prescribed rules and the fixed principles of Shari, but Ijtihad, Qiyas and expedient rules can be changed; Because there are many rulings that have been permitted for expediency, after the passage of time and the change of place have led to corruption, which again has become impermissible. The rule of fatwa changing has been valid in the Sharia; Because, on the one hand, the Companions and their followers have used it in their ijtihad fatwas, and on the other hand, Islamic jurisprudence is a developmental debate that progresses together with the caravan of life, no awareness of the demands of time, place and scientific development is synonymous with depriving the Islamic Ummah from virtues and facilities of life, so it is necessary that the change of the fatwa has to be compatible to the change of expediencies, otherwise it will lead to corruption and harm. Statement of the problem: The Islamic jurists have divided the Islamic rules into fixed and variable. This means that the prescribed laws, which are in harmony with meek nature, do not accept changes but the rules which are based on ijtihad can be changed. The discussion of changing the fatwa and its temporal and spatial factors is one of the important issues of jurisprudence that scholars have paid attention to and therefore the answer to these two questions is necessary for the researcher whether changing the fatwa is permissible? Are the requirements of time and place effective in its changing?

Sign in / Sign up

Export Citation Format

Share Document