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Journal articles on the topic 'Ijtihād (Islamic law)'
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1
Galadari, Abdulla. "Ijtihād Holds Supremacy in Islamic Law: Muslim Communities and the Evolution of Law." Religions 13, no. 4 (April 15, 2022): 369. http://dx.doi.org/10.3390/rel13040369.
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While the traditional view of Islamic law (sharīʿah) and jurisprudence is to consider the Qur’an as the starting point for legal matters, followed by the prophetic tradition, and then resorting to various forms of “ijtihād”, it is argued here that the Qur’an was not really held in a position of legal supremacy. Since the time of the earliest Muslim community, it is “ijtihād” that has created the criteria by which Qur’anic and even prophetic rules are to be kept, suspended, and contradicted. Therefore, the Qur’an is not viewed historically as having legal supremacy for Islamic law and is not considered similar to some constitutions, against which laws are measured. Hence, in modern-day Islamic legal discourse, it would not be unreasonable to argue that “ijtihād” has supremacy in Islamic law, giving some flexibility to Muslim communities in the evolution of such laws.
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Makhlouf, Ahmed Gad. "Evolution of Islamic Law in the 20th Century: The Conception of Collective Ijtihād in the Debate Between Muslim Scholars." Oxford Journal of Law and Religion 9, no. 1 (February 1, 2020): 157–78. http://dx.doi.org/10.1093/ojlr/rwaa019.
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Abstract In order to meet the demands of modern life and its complexities, Muslim scholars developed in the 20th century a new instrument of Islamic legal finding, namely al-ijtihād al-jamāʿī [collective independent legal reasoning (ijtihād)]. The latter serves at present as a basis for the technical work within various institutions of contemporary Islamic law, in particular the fiqh academies. This article examines collective ijtihād as a newly developed concept of modern Islamic Law. By focusing on discussions among contemporary Muslim scholars about this concept, I aim to outline certain theoretical characteristics and a methodological framework for collective ijtihād. Furthermore, this article describes positions taken by Muslim scholars concerning the legitimacy and the probative value (ḥujjiyya) of collective ijtihād.
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Nakissa, Aria. "An Epistemic Shift in Islamic Law." Islamic Law and Society 21, no. 3 (June 27, 2014): 209–51. http://dx.doi.org/10.1163/15685195-00213p02.
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In this article, I combine textual research with ethnographic data collected at al-Azhar and Dār al-ʿUlūm to investigate how the modernization of traditional religious learning has transformed the character of Islamic legal doctrine. I argue that changes in educational techniques have produced a shift in “episteme”. Whereas traditional religious learning was dominated by language-based conceptions of knowledge, modern reforms have reoriented education towards new conceptions modeled on the natural sciences. This transformation has fundamentally altered patterns of legal reasoning, particularly with respect to ijtihād and taqlīd. I use these observations to urge a rethinking of the perspectives on ijtihād and taqlīd that currently structure Western research on Islamic legal history.
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Hussain, Mubasher. "The Continuation of Ijtihād." ISLAMIC STUDIES 60, no. 1 (March 31, 2021): 31–51. http://dx.doi.org/10.52541/isiri.v60i1.1522.
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This article deals with legal thought of Shāh Walī Allāh, an outstanding religious thinker of eighteenth-century Muslim India, who emerged as one of the most prominent proponents of independent legal reasoning (ijtihād). According to Walī Allāh, ijtihād has always been a communal duty and thus it stipulates the existence of jurists capable of independent legal reasoning (mujtahids) in all ages. His thought-provoking response to the issues concerning ijtihād and taqlīd has led to a great deal of attention from scholars in both the East and the West. However, there remains the controversy of whether he advocated for an independent ijtihād after the eponyms of the law schools or not. This study attempts, analyzing Walī Allāh’s views on the juristic typology maintained by Sunnī jurists, to show how Walī Allāh argued for the continuity of ijtihād, both partial and independent, throughout the history of Islamic law. The author concludes that Walī Allāh believed not only in the possibility of absolute ijtihād (al-ijtihād al-muṭlaq) or ijtihād through legal theory (fī ’l-uṣūl) and positive law (wa ’l-furū‘), after the eponyms of the juristic schools, but also in the existence of such absolute jurists throughout Islamic centuries.
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Sa’dan, Saifuddin, Husni Mubarrak, Hamdiah Hamdiah, and Amir Muhammed Kafei Kjoor. "IMKĀNIYĀT AL-IJTIHĀD AL-ISTIṢLĀHĪ WA ISHĀMĀTUHU LI HALL AL-QADHĀYĀ AL-FIQHIYYAH AL-MU’ĀṢARAH: DIRĀSAT FĪ FATĀWĀ JĀ’IHAH COVID FĪ INDONESIA." Jurnal Ilmiah Islam Futura 24, no. 1 (February 2, 2024): 198. http://dx.doi.org/10.22373/jiif.v24i1.14967.
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This article would like to discuss one of the theories of ijtihād that is well-recognized in the science of ushūl fiqh, namely the theory of ijtihād istiṣlāhiy, in terms of its concept and its application to solve contemporary Islamic law by making the fatwas of the Covid-19 in Indonesia as the object of study. Even though a fatwa is a legal notification which is legal and unbinding, fatwa is certainly not produced from a vacuum, but has gone through a process of understanding the details of the proposed Islamic law issue and studying it using the appropriate ijtihād method, one of which is ijtihād istiṣlāhiy. This article presents the results of a qualitative research using a bibliographical study as the method. This article attempts to present an academic discussion regarding the flexibility of ijtihād istiṣlāhiy, its limits as well as its dhawābith in answering contemporary Islamic law issues by examining the side of the establishment of the Covid-19 fatwas law in Indonesia in this recent period. The results of the study show that the fatwas regarding Covid-19 in Indonesia is based on the principle of benefit (maṣlahah) reached through the ijtihād istiṣlāhiy method.
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Bantekas, Ilias. "The Disunity of Islamic Criminal Law and the Modern Role of Ijtihād." International Criminal Law Review 9, no. 4 (2009): 651–65. http://dx.doi.org/10.1163/156753609x12487030862746.
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AbstractIslamic law, and criminal law in particular, have been closed since its heyday of legal scholarship to external influences and new theoretical arguments and constructs. This, it is argued, is due to the lack of enlightened and revered scholarship that will enhance Islamic law and which is currently unavailable. This situation is unlike early and classical Islam where legal argumentation flourished and Islamic scholarship was generally open to external currents and philosophical ideas. Despite these limitations Islamic criminal law has not coalesced to shield itself from foreign elements, but instead lacks a single voice not only in practice but also in its theoretical bases among Muslim nations. We cannot therefore speak of 'an' Islamic criminal law nor can Muslims continue to ignore the beneficial role of ijtihād that should be utilised at least as a forum for discussion about bridging classic Islamic criminal law with contemporary Muslim needs. Many contemporary issues in Islamic criminal law are evidently based on prejudice, culture and less on a coherent understanding of Islamic theology itself. Islam possesses a plethora of outstanding legal scholars that should be allowed to contribute to an ijtihādī scholarly 'revolution'.
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Aljloud, Saad A. "Ijtihād and Ikhtilāf: Re-interpreting Islamic Principles in Contemporary Times." Arab Law Quarterly 28, no. 1 (2014): 85–98. http://dx.doi.org/10.1163/15730255-12341273.
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Abstract Islamic law has emerged from a range of highly religious treaties to highly practical methods, which have resulted in its practices established on a worldwide level. There are several interpretations of the Qurʾān and Sunnah, which in turn have led to differences in methodological practices and opinion. In relation to Islamic financial law, this article will investigate how each opinion derives and coincides with Shariʿah law in its own way, thoroughly explaining why differences (ikhtilāf) have occurred and exist. In the author’s opinion, differences in schools of thought (ikhtilāf) are valid in that they each follow the principles and processes of forming opinions within Shariʿah law (ijtihād) which will be elucidated in this article. From reading this article, one can also derive how Shariʿah law is actually flexible and open to progression in all times, whereas common intellectual stereotypes and partial understanding of the text often negates this.
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Bahrudin, Moh, Tulus Suryanto, and Mohd Mizan Bin Mohammad Aslam. "The Implementation of Ijtihād Jamā'iy in MUI's Fatwa Commission." Walisongo: Jurnal Penelitian Sosial Keagamaan 28, no. 2 (November 30, 2020): 125–44. http://dx.doi.org/10.21580/ws.28.2.6293.
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The Holy Quran and Sunnah contain universal values that require correct reasoning to be understood and applied by the Muslims. In this context, the scholars have been justified by Allah Almighty to undertake the ijtihād and ijmā’. This study aims to describe the ijtihād jamā’iy (collective ijtihād theory), as well as to analyze the implementation of ijtihād jamā’iy at MUI’s Fatwa Commission in Lampung. This study is a combination of literature and field research. The data were obtained through literature studies of books, articles, and journals in related issues. Besides, the authors also interviewed MUI members to gain deeper information. Theoretically, the contemporary ijmā’ process can be pursued by an independent forum to conduct studies until a consensus is obtained from the majority of the participants. The panel must involve all religious elements in a representative manner. The practice of establishing Islamic law carried out by MUI’s Fatwa Commission of Lampung Province is in accordance with the concept of ijtihād jamā’iy in the science of uṣūl fiqh. This analysis is important so that people have a high level of compliance after knowing that the MUI Lampung fatwa is ijma, which in fact is one of the sources of Islamic law.
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Khalifah, Nur, and Miftakhul Rohman. "METODOLOGI Metodologi Istinbath Hukum Imam Asy-Syafi’i." SINDA: Comprehensive Journal of Islamic Social Studies 2, no. 2 (August 2, 2022): 37–51. http://dx.doi.org/10.28926/sinda.v2i2.469.
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Ijtihād is a thought process to find out the law of a problem based on the most appropriate argument. Correct ijtihad will be able to provide answers to the problems at hand. The basis of true ijtihād is the ability to explore the arguments from the Qur'an and hadith and then process them using qualified tools, supported by correct and consistent methodologies. These three components with the addition of the most important factor, namely the straightness of intentions and an objective view, will undoubtedly be able to produce legal certainty for the problems that are often asked by mankind. Understanding the correct methodology and applying it appropriately will be able to produce the legal provisions sought in the ijtihād process itself.
In this article, we will discuss more specifically about one of the great madhhab imams, namely Al-Imam Muhammad bin Idris Asy-Syafi'i rahimahullahu or Imam Shafi'i. The main issues that will be discussed in this article are about the legal basis used by Imam Syafi'i in determining Islamic law and the development of Islamic law or the Shafi'i school. In addition to also reviewing the methodological framework, to deliver him as an absolute mujtahid, the founder of the basic methodology in Islam.
Imam al-Syafi'i's ijtihād methods contained in the book of al-Risālah include: Returning all matters to the Qur'ān, hadith, ijmā', the words of friends (al-Āṡār) and qiyās, issuing laws by looking at the substance of a argument, issuing the law by looking at its 'illat and lowering the argument only on things that are visible, as for the essence, then return to Allah swt. Imam Ash-Shafi'i argues that the main basis in establishing the law is the Qur'an and the Sunnah. If not, then by relying on the Qur'an and Sunnah. If the chain of hadith is continued until the Messenger of Allah and the sanad is authentic, then that is what is desired. Ijma as a proof is stronger than khabar ahad. If a hadith contains more than one meaning, then the meaning that is dzahir is the main one. If the hadiths are of the same level, then the one that is more authentic is more important.
10
Abbasi, Muhammad Zubair. "Judicial Ijtihād as a Tool for Legal Reform: Extending Women’s Right to Divorce under Islamic Law in Pakistan." Islamic Law and Society 24, no. 4 (October 3, 2017): 384–411. http://dx.doi.org/10.1163/15685195-00244p04.
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In a series of judgments starting in 1959, Pakistani judges reformed Islamic family law by extending women’s right to no-fault based divorce (khulʿ). For this purpose, they directly interpreted the Qurʾān and Sunnah, and removed the requirement of the consent of a husband for judicial khulʿ. This article analyses the methods and the methodological tools that Pakistani judges used to justify the unilateral right of women to no-fault judicial divorce. The analysis shows that instead of following the opinions of classical jurists, Pakistani judges exercised independent legal reasoning (ijtihād). By using judicial ijtihād, Pakistani judges continue to play a key role in reforming classical Islamic family law with changing circumstances.
11
Jamaa, La. "Kontribusi Muhammadiyah terhadap Dinamika Pemikiran Hukum Islam Kontemporer di Indonesia." AL-IHKAM: Jurnal Hukum & Pranata Sosial 12, no. 1 (August 6, 2017): 127–48. http://dx.doi.org/10.19105/al-lhkam.v12i1.1215.
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Muhammadiyah memiliki Majelis Tarjih dan Tajdid dengan kompetensi melakukan ijtihad terhadap berbagai problem hukum yang dialami umat Islam, baik dalam bentuk pemikiran ulang terhadap aturan hukum Islam yang telah ada, maupun menemukan dan menetapkan hukum terhadap peristiwa baru pada era modern. Ijtihad Muhammadiyah terhadap permasalahan hukum Islam kontemporer yang tidak ada nashnya, menggunakan ijtihād, baik secara bayāni, qiyāsi, maupun istislāhi serta sadd al-zari’ah dengan tetap mengacu kepada prinsip jalbu masalih wa daf’u mafāsid. Ijtihad Muhammadiyah tersebut telah menghasilkan berbagai fatwa dalam masalah yang dihadapi umat Islam kontemporer. Meskipun secara kuantitas, fatwa Muhammadiyah dalam bidang hukum Islam kontemporer masih minim dibandingkan dengan fatwa dalam masalah non kontemporer, namun telah memberikan kontribusi terhadap dinamika pemikiran hukum Islam kontemporer di Indonesia.(Muhammadiyah has Tarjih and Tajdid Councils with the competence to do ijtihad on various legal problems experienced by Muslims, either in the form of rethinking the existing Islamic law, or finding and deciding legal judgment on new events in the modern era. Ijtihad done by Muhammadiyah on contemporary Islamic law issues that are not stated clearly in the Quran, uses bayani, qiyāsi, and istislāhi as well as sadd al-zari'ah by referring to the principle of jalbu masalih wa daf’u mafāsid. The ijtihad has produced various fatwas on the problems faced by contemporary Muslims. Although there is a small quantity of Muhammadiyah fatwa on contemporary Islamic laws compared to the fatwa on non contemporary issues, it has contributed to the dynamics of contemporary Islamic legal thinking in Indonesia)
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Moath Alnaief and Kotb Rissouni. "A Critical Analysis of the Claim that Absolute Juristic Interpretation (Ijtihād) Has Ended." Journal of Islamic Thought and Civilization 12, no. 2 (October 11, 2022): 28–40. http://dx.doi.org/10.32350/jitc.122.03.
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This article critically analyzes the dominant opinion prevailing regarding the foundation of Islamic jurisprudence (uṣūl al-fiqh) which states that absolute independent juristic interpretation (al-ijtihād al-muṭlaq al-mustaqill) is no longer possible. Therefore, based on the belief that this level of interpretation requires the creation of a unique method for deriving legal rules (istinbāṭ), a method that arguably ended with the founders of the primary schools of law. This research inspects a new interpretive method which was not developed by late scholars. Consequently, the article uses legal reasoning as an interpretive method to criticize the previous opinions regarding Islamic Jurisprudence by using both textual and rational evidence. For instance, the preservation of religion and the continued renewal of convenient sources requires scholars to reach the highest level of interpretation (ijtihād). In addition, a connection to the legal reality of the time and rulings were necessary to adapt them, an issue dependent upon direct derivation of rulings from religious texts or the freedom to implement secondary forms of evidence. Therefore, this research concludes that the founders of the traditional law schools did not develop their foundations independently. Instead, they did so through constructive investigation and analysis. Their interpretations conformed to the Prophet’s (SAW) Companions. Such a process continued and future independent scholars followed their footsteps. In addition, the legal reality in every age saw the rise of individuals who positively impacted the renewal of the foundations of jurisprudence by interpreting Prophetic hadīth which required advanced interpretative skills.
Keywords: Absolute Ijtihād, Ijtihād, Islamic law, Independent juristic reasoning, Madhāhib
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Ahmed, Sajjad, and Muhammad Shahbaz Manj. "U-2 The Juristic Decisions and Resolutions about Modern Islamic Finance and economics issued by Islamic Fiqh academy India." Al-Aijaz Research Journal of Islamic Studies & Humanities 4, no. 2 (November 23, 2020): 25–48. http://dx.doi.org/10.53575/u2.v4.02(20).25-48.
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According to the Quran and Sunnah, the Sharī‘ah ruling for the new incidents derived by the process of Ijtihad. From the Sharī‘ah sources, ijtihad is a prerequisite for the survival of Islam law in a modern world. It plays a crucial role in applying Shari‘ah to contemporary society. Ijtihad is categorized into two types as individually as well as collectively. In the era of globalization and specialization, the collective method of ijtihad is preferably required to be embraced. Collective Ijtihad is a practical mechanism for determining the Shari‘ah’s opinion on modern issues facing Muslim communities (ummah) on a multiplicity of current issues. It explores the practical framework of this kind of ijtihad and its application by discussing the Islamic Fiqh Academy (IFA) India that practice it. The main objective of IFA was to provide solutions through a collective effort of religious scholars to solve the contemporary legal and ethical problems Muslim societies faced. IFA was established in 1989 in Dehli, so far successfully brought together a large number of religious scholars (ʿulamāʾ) and collaborates with a global network of several Islamic institutions with similar objectives. In the seminars discuss all matters from the perspective of Islamic law in a bid to find acceptable solutions. As of 2017 IFA has conducted 27 seminars in different cities of India whereas addressed almost 135 crucial issues such as Islamic Business contracts, Islamic finance, economics, medical ethics, insurance, divorce given by a drunkard and given in the state of intense anger, interfaith relations, and dialogues collective issues have been discussed and its decisions are valued all over the world. By discussing the IBF, the objective is to high light the contemporary collective Ijtihād in Fiqh of finance in light of the guidelines provided by the Sharī‘ah.
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Bachtiar, Hasnan. "Theologising Democracy in the Context of Muhammadiyah’s Ijtihād." Indonesian Journal of Islam and Muslim Societies 12, no. 1 (June 4, 2022): 165–200. http://dx.doi.org/10.18326/ijims.v12i1.165-200.
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This article focuses to examine the process of Muhammadiyah’s ijtihād has evolved, specifically in constructing the notion of Negara Pancasila sebagai Dār al-‘Ahd wa al-Shahādah (the state of consensus and witness) and the arguments on which it is built. The scholarly issues that have been highlighted in this article are study on this specific discourse has not been done yet, the ijtihad in the field of Siyar (law of war and international relations in Islamic traditions) which has been elaborated with ideas of contemporary social sciences is very rare, and the discourse of Siyar has dominantly covered only the area of Middle East. Accordingly, this article confidently fulfils these gaps applying qualitative research method and analysis of social contextualisation. This article argues that the way of Muhammadiyah’s ijtihād in producing the idea of Indonesia as the state of consensus and witness is applying theologising democracy. It consists of trajectory in which Muhammadiyah has objectified Islam and substantialised it to enhance the meaning of democracy.
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Wiederhold, Lutz. "Legal Doctrines in Conflict:." Islamic Law and Society 3, no. 2 (1996): 234–304. http://dx.doi.org/10.1163/1568519962599096.
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AbstractAccording to Western legal historians, the closing of the door of Ijtihād shortly after the formation of the law schools resulted in a long period of sterility in Islamic legal thought and rigid adherence to traditional rules in legal practice. But what did Muslim scholars have in mind when they used the term Ijtihād? Do the sources point to any change in Muslim jurists' understanding of the notion of Ijtihād? And if so, is this change entirely the result of theoretical debate? Drawing on a wide variety of legal sources, supplemented by historiographical and prosopographical sources from the Mamluk and Ottoman periods, I attempt to answer these questions by drawing attention to the relationship between the debate on Ijtihād and the social and political circumstances and legal practices of particular Muslim societies.
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Nashirudin, Muh, and Mudofir Mudofir. "The Authority of Majelis Tafsir Al-Qur’an (MTA) Fatwa: Critical Review of the MTA’s Sunday Morning Brochure." Al-Manahij: Jurnal Kajian Hukum Islam 12, no. 2 (December 5, 2018): 163–76. http://dx.doi.org/10.24090/mnh.v12i2.1634.
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This paper discusses the authority behind the Sunday Morning Brochure by Majelis Tafsir Al-Qur’an (MTA). The Sunday Morning Brochure is a study material given on Sunday morning and distributed to MTA members, and they can be regarded as a fatwa or the result of the MTA’s ijtihād in understanding the sources of Islamic law. From the documentations and interviews, this research finds that the study materials on the MTA’s Sunday morning brochures have been designed by a team of experts under the supervision of Ahmad Sukina. However, the brochures are, in fact, only prepared individually by the chairman of the team, i.e. Masduki who cannot be said to be authoritative in the istinbāṭ or ijtihād of Islamic law because he does not meet the criteria as an individual mujtahid in establishing the Islamic law. While using the jargon back to the Qur'an and Sunnah, MTA still uses ijmā' and qiyās as a proposition though in a very limited case. Other sources than those four, such as istiḥsān, maṣlaḥah, and istiṣḥāb will not be used by the MTA.
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Kemper, Michael. "Ijtihād in Putin’s Russia? Signature Fatwas from Moscow and Kazan." Journal of the Economic and Social History of the Orient 65, no. 7 (November 14, 2022): 935–60. http://dx.doi.org/10.1163/15685209-12341585.
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Abstract The present article analyzes the recent fatwa production by two of Russia’s major muftiates, the traditionalist Spiritual Administration of Muslims of the Republic of Tatarstan (DUMRT) in Kazan and the modernist Spiritual Administration of Muslims of the Russian Federation (DUMRF) in Moscow. The author investigates the methodologies that Russia’s muftis follow when elaborating fatwas, and the global links that surface from their source bases. DUMRT’s taqlīd, or imitation, of elements of the Ḥanafī school of Islamic law is contrasted with DUMRF’s program of ijtihād. DUMRF’s claims to ijtihād, wasaṭiyya and minority fiqh are tested by the analysis of controversial fatwas about marriage, conversion, and divorce in Russia. This paper introduces the term “signature fatwa” to denote fatwas that are meant to demonstrate the particular identity of a given muftiate, and that serve as a tool for its political positioning vis-à-vis the Kremlin, other fatwa-producers, and the Muslim communities. The present contribution addresses scholars of Islam in Eastern Europe as well as students of Islamic law in Muslim minority situations, including in the European Union.
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Gould, Rebecca. "Ijtihād against Madhhab: Legal Hybridity and the Meanings of Modernity in Early Modern Daghestan." Comparative Studies in Society and History 57, no. 1 (January 2015): 35–66. http://dx.doi.org/10.1017/s0010417514000590.
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AbstractThis article explores the interface of multiple legal systems in early modern Daghestan. By comparing colonial engagements with legal plurality with indigenous genres of Daghestani legal discourse, I aim to shed light on the plurality of legal systems that preceded as well as informed legal discourse under colonialism. The Daghestani turn to ijtihād (independent legal reasoning) in the early modern period parallels the turn away from cādāt (indigenous law) that shaped modern Islamic as well as colonial legal regimes, albeit with radically distinctive genealogies. In tracing these internal debates, I offer a preliminary genealogy of Daghestani ijtihād that is grounded in the robust debates concerning the sources of Islamic authority that originated in Yemen and were transmitted to Daghestan by traveling scholars. This essay is a contribution to the study of legal norms on colonial borderlands, as well as to the study of Islamic modernity before colonialism.
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Abdelgawwad, Ossama. "Research Handbook on Islamic Law and Society." American Journal of Islamic Social Sciences 36, no. 4 (October 7, 2019): 121–24. http://dx.doi.org/10.35632/ajiss.v36i4.606.
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The premise of the adaptability, flexibility, and compatibility of Islamic normative teachings (sharīʿa) to new social contexts is already documented by many scholars, including John Bowen’s On British Islam: Religion, Law, and Everyday Practice in Shari‘a Councils and Michael G. Peletz’s Islamic Modern: Religious Courts and Cultural Politics in Malaysia. Unlike those works, this textbook is organized by theme which provides a unique contribution to our understanding of the overall function of contemporary Islamic law. Such an approach shows that the ‘right’ answer in one country is not necessarily the ‘right’ solution in another Muslim community, which explains the diverse application of Islamic law. The book challenges Wael Hallaq’s observation that the modern codification of Islamic law resulted in the absence of hermeneutical possibilities or led to a single mode of judicial application. Perhaps Hallaq’s proposition is accurate if we examine the function of Islamic law in a specific country. Nevertheless, the book provides concrete examples of the administrative and interpretive techniques of ‘neo-ijtihād’ today.
To download full review, click on PDF.
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Abdelgawwad, Ossama. "Research Handbook on Islamic Law and Society." American Journal of Islam and Society 36, no. 4 (October 7, 2019): 121–24. http://dx.doi.org/10.35632/ajis.v36i4.606.
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The premise of the adaptability, flexibility, and compatibility of Islamic normative teachings (sharīʿa) to new social contexts is already documented by many scholars, including John Bowen’s On British Islam: Religion, Law, and Everyday Practice in Shari‘a Councils and Michael G. Peletz’s Islamic Modern: Religious Courts and Cultural Politics in Malaysia. Unlike those works, this textbook is organized by theme which provides a unique contribution to our understanding of the overall function of contemporary Islamic law. Such an approach shows that the ‘right’ answer in one country is not necessarily the ‘right’ solution in another Muslim community, which explains the diverse application of Islamic law. The book challenges Wael Hallaq’s observation that the modern codification of Islamic law resulted in the absence of hermeneutical possibilities or led to a single mode of judicial application. Perhaps Hallaq’s proposition is accurate if we examine the function of Islamic law in a specific country. Nevertheless, the book provides concrete examples of the administrative and interpretive techniques of ‘neo-ijtihād’ today.
To download full review, click on PDF.
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Maftuhin, Arif. "The Historiography of Islamic Law: The Case of Tārīkh al-Tashrī‘ Literature." Al-Jami'ah: Journal of Islamic Studies 54, no. 2 (December 14, 2016): 369. http://dx.doi.org/10.14421/ajis.2016.542.369-391.
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Tārīkh al-Tashrī‘ (the history of sharia affairs) is a relatively new genre of Islamic historiography and very popular among students of Islamic Law. Despite its popularity, academics of Islamic historiography seem not interested in studying it. There is hardly any academic paper seriously studied the literature. This paper is a first effort to explore the Tārīkhu’t-tashrī‘ literature through a historiographical analysis. As an initial exploration, it argues that Tārīkh al-Tashrī‘ is the latest development of Islamic historiography, developed in the 19th century, but it is a genre of the old Islamic historiography with some new elements. The new elements are influenced by both modern Western historiography and the need to re-open the supposedly closed gate of ijtihād. The paper studied books of Tārīkh al-Tashrī‘ available during the research between 2013-2015. [Tārīkh al-Tashrī‘ adalah genre yang relatif ‘baru’ dalam matarantai perkembangan historiografi Islam. Literatur ini sangat popular dan menjadi mata kuliah wajib di fakultas-fakultas Syariah di Indonesia maupun Timur Tengah. Hanya saja, meskipun ia sangat populer sebagai mata pelajaran, Tārīkh al-Tashrī‘ belum banyak menarik minat para peneliti historiografi. Makalah in berusaha mengeksplorasi literatur Tārīkh al-Tashrī‘ dengan pendekatan historiografi. Makalah ini berpendapat bahwa Tārīkh al-Tashrī‘, meski terlihat ‘modern’ dari segi kelahirannya, tidak banyak berbeda dengan literatur historiografi klasik. Perbedaan terjadi karena adanya pengaruh historiografi Barat dalam model penulisannya dan karena kebutuhan untuk membuka kembali pintu ijtihad yang tertutup. Kajian dilakukan terhadap kitab-kitab Tārīkh al-Tashrī‘ yang dapat ditemukan selama riset antara 2013-2015 ]
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Khan, Hafiz Abdul Basit. "فقہ اسلامی کی تشکیل جدید : بنیادی اصول و ضوابط." Journal of Islamic and Religious Studies 5, no. 2 (December 14, 2020): 1–16. http://dx.doi.org/10.36476/jirs.5:2.12.2020.01.
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Rapid development in all fields especially in economic and medical sciences has made the attention of Muslim jurists turned towards a reframing of Islamic legal theory. Dr. Waḥaba al-Zuḥaylī and Dr. Jamāl Al-dīn Aṭiyyah have left behind them rich literature in this regard. Other numerous Muslim jurists have also laid down some principles for reshaping Islamic jurisprudence. Applying the analytical method of research, the author initially investigated the leading principles recommended by these scholars for this reconstruction. He then has very briefly described five basic principles that were established by these scholars; Collective ijtihād in which a group of jurists make their best efforts to bring a solution of problems faced by Muslims is assumed to be very effective and more beneficial than individual ijtihād. Combining of maḍāhib, which is termed as Talfīq, is advocated by a group of contemporary jurists to develop an exclusive circle for Muslims to practice Sharī’ah in a specific field. Islamic banking is the most appropriate example of this principle. Both types of ijtihād: derivative and purposefulness must be applied parallel. Where more than one viewpoint in an injunction is found in one school of fiqh, only that one should be preferred which ensures fulfillment of the maṣlaḥah that has been observed in that injunction. The codification of fiqh literature will also be helpful in the implementation of Islamic law. These five principles can make Shariah practicable and implantable in the modern world where Muslims are not holding the field.
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Nur, Iffatin, M. Ngizzul Muttaqin, and Ali Abdul Wakhid. "Reformulasi al-Qawā’id al-Uṣūliyyah al-Tashrī’iyyah dalam Pengembangan Fiqih Kontemporer." Analisis: Jurnal Studi Keislaman 20, no. 1 (July 8, 2020): 47–68. http://dx.doi.org/10.24042/ajsk.v20i1.6573.
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As a first step in extracting Islamic law, namely through the study of texts, qawa'id al-uṣūliyyah al-tasyri’iyah in this way has an important position in the discourse of studying Islamic law. Unfortunately, in today's situation, al-qawā‘id al-uṣūliyyah al-tashrī'iyyah seems to be ruled out. This position is taken by ijtihād models based on a progressive approach rather than an approach to the text. This study is a discourse analysis using a qualitative method with a normative approach. In this study, the author examines the concept of al-qawā‘id al-uṣūliyyah al-tashrī'iyyah which is then formulated in several issues and problems of contemporary Islamic law. The findings in this study indicate that: first, the al-qawā'id al-uṣūliyyah al-tashrī'iyyah model in determining and establishing Islamic law places more emphasis on the substance of fundamental values in Islamic law, second, reformulation of al-qawā'id al -uṣūliyyah al-tashrī'iyyah in the settlement of contemporary Islamic law puts forward the protection of mafsadat rather than the taking of maṣlaḥah.
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Calder, Norman. "Al-Nawawī's Typology of Muftīs and its Significance for a General Theory of Islamic Law." Islamic Law and Society 3, no. 2 (1996): 137–64. http://dx.doi.org/10.1163/1568519962599113.
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AbstractThis essay offers, in Section 2, a translation of al-Nawawī's presentation of the hierarchy of Muftīs. The context of the passage and its terminology and arguments are explored in the other Sections in order to assess their implications for the general character of Islamic juristic activities. Section 1 identifies two themes central to the text, namely loyalty to madhhab and differentiation of the task of the teaching jurist and the muftī. The first of these is elaborated in Section 3, which points to formal qualities of presentation and argument which assert the hermeneutical continuity of the school tradition; and in Section 4, which deals with the pivotal role of the founding imām in the legitimation of the school tradition. Section 5 takes up the terms taqlīd and ijtihād and shows that al-Nawawī's usage points towards a complex resolution of the recent debate about the open/closed door of ijtihād. The last Section returns to the original two themes to make two suggestions: (1) that taqlīd may be assessed as a principal of vitality within a hermeneutical tradition; (2) that the author-jurist (not the practising muftī) is the dominant creative agent within the ongoing juristic traditions.
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Darmalaksana, Wahyudin, Lamlam Pahala, and Endang Soetari. "Kontroversi Hadis sebagai Sumber Hukum Islam." Wawasan: Jurnal Ilmiah Agama dan Sosial Budaya 2, no. 2 (December 31, 2017): 245–58. http://dx.doi.org/10.15575/jw.v2i2.1770.
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The position of hadith as the source of Islamic law has brought about a problematic long debate between the denial and the defender of hadith. The problemes surrounding the hadith's position concerns the hadith in the aḥad category which is contrasted with the mutawtir category. This study aims to analyze the position of hadith as a source of Islamic law. This researcāh uses qualitative research method through literature study by using a content analysis methode to obtain a conclusion. The discussion of this study presents the arguments surrounding hadith as the source of Islamic law among its denials and defenders. The denial of the hadith takes the ijtihād rather than positioning the aḥad hadith as the source of Islamic law. Thus, the defenders of hadith from the experts of hadith still insist on asserting hadith as the source of Islamic law even though it is a category of aḥad by developing a systematic methode of hadith research. This study concludes that the problemes surrounding the position of hadith as a source of Islamic law have given rise to positive dynamics for the development of the methodology of hadith research.
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Hoque, Ridwanul, and MD Morshed Mahmud Khan. "Judicial Activism and Islamic Family Law: A Socio-Legal Evaluation of Recent Trends in Bangladesh." Islamic Law and Society 14, no. 2 (2007): 204–39. http://dx.doi.org/10.1163/156851907781492511.
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AbstractThis article critically examines instances of judicial activism in the field of Islamic family law in Bangladesh in an attempt to assess this judicial trend. Seeing 'judicial activism' mainly as an enlightened application of ijtihād and also as society-specific application of statutes based on, or related to sharī'ah, we highlight the justice-ameliorative role of this concept. The authors argue that judicial activism has led to the amelioration of the status of women in Bangladesh as compared to a traditional construction of the sharī'ah, and that judges have adequate authority and legitimacy to develop Islamic family law to ensure better justice in the home. We conclude that modernist judicial reform is not only desirable but also inevitable in the current South Asian socio-legal milieu, where legislative passivity vis-à-vis Islamic family law prevails.
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Djafry, Muhammad Taufan. "Metode Ijtihad Imam al-Syafi'i dalam Kitab al-Risalah." Nukhbatul 'Ulum 2, no. 1 (December 23, 2016): 185–94. http://dx.doi.org/10.36701/nukhbah.v2i1.14.
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Al-Risālah is a frst book concerns in ushul fkh. This book is written by Imam al-Syāf’ī rh. and contains explainations on rules of islamic argumentation (istidlāl) from al-Qur’ān. Al-Risālah book has gotten the great credit of moslem schoolars up to nowdays, as it is not only a frst book in ushul fkh but it also contains various knowledges in many felds. Imam Syāf’ī ‘s view on ijtihād and its methodology are explained in this book. Imam Syāf’ī’s methods explained in this book are : Making all cases reference to al-Qur’ān, Ḥad Ḥ īṡ, Ijmā’, and the ṣah Ḥ ābah’s sayings and qiyās, determining a law by considering a substantial argumet, determining a law by considering the illat and reducing the arguments to the visible matters, and the truth is reverted to Allah.
Keyword : Ijtihād, Uṣūl al-Fiqh, Imam Syāf’ī
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Hanaffie Hasin. "قاعدة "تصرف الإمام في الرعية منوط بالمصلحة" وتطبيقها في نازلة كوفيد-19." Ulum Islamiyyah 33, S4 (December 17, 2021): 319–46. http://dx.doi.org/10.33102/uij.vol33nos4.431.
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Among the factors which play a great effect in causing the change in standard Islamic rulings is the occurance of a sudden widely spread catastrophe or pandemic which has resulted in large numbers of fatalities globally. In our current time, the Covid-19 has widely spread and adversely affected all aspects of daily life. In the time of pandemic or calamity, in general, the ruling government holds a great and heavy responsibilty in learning the Islamic ruling concerning the arising problems and thus taking the best decisions and measure in order to ease public affairs and put them in good order according to the Maqāṣid of Syarī‘ah (Objectives of Syarī ‘ah) in providing benefits for the citizens and safeguard them from harm. This goal is the core essence and ultimate purpose of governance in Islam. This study aims to elucidate the importance of the Legal Maxim: “Leader’s Actions Towards The People Are Based On Maṣlaḥah (Benefit)” in the light of collective ijtihād, knowledge and responsibilities according to Islamic rulings and Syarī‘ah governance to preserve the five kulliyyāt of Islamic Syarī‘ah (The Five General Objective of Syarī‘ah Islāmiyyah) in every aspect of both religious and worldly affairs. This study follows the descriptive and analytical methodologies in explaining the legal maxim from the view of Islamic Science tradition and, applied methodology in applying the legal maxim in dealing with the current Covid-19 pandemic and critical methodology in criticising some fatwa (legal ruling issued by Islamic scholars and authorities) in approaching and dealing with numerous issues related to this pandemic. Amongst the most important findings of this study is the important role of collective ijtihād which gather the government leaders, experts from every field, religious scholars and authorities to take any beneficial and unharmful decision based on the true methodology of Islamic teachings. This kind of ijtihād is extremely important to assure that every action done in facing this pandemic is in accordance with Allah’s law, therefore, in obtaining salvation in this worldly life and hereafter.
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Kahera, Akel, and Omar Benmira. "Damages in Islamic Law: Maghribī Muftīs and the Built Environment (9th-15th Centuries C.E.)." Islamic Law and Society 5, no. 2 (1998): 131–64. http://dx.doi.org/10.1163/1568519982599544.
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AbstractThe Mālikī jurists of the Maghrib, or Islamic West, applied the ḥadīth, “no harm shall be inflicted [on anyone] or reciprocated [against anyone]” (lā ḍarar wa-lā ḍirār fī-l-Islām ). This axiom called for the exercise of the muftī's independent reasoning (ijtihād) in matters that were not explicitly clear from the text (naṣṣ) of the Qurʾāan or sunnah. Mālikī jurists used this axiom, which was open to various interpretations, as a basis for rendering legal opinions (fatāwā) in domestic conflicts arising from infractions relating to the socio-spatial world.
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Fadel, Mohammad. "The Social Logic of Taqlīd and the Rise of the Mukhataṣar." Islamic Law and Society 3, no. 2 (1996): 193–233. http://dx.doi.org/10.1163/1568519962599122.
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AbstractThe study of the relationship between ijtihād and Taqlīd has been dominated by an approach that privileges ijtihād over Taqlīd on the assumption that the former is an intellectually superior mode of legal reasoning. By analyzing the role of Taqlīd in regulating the actions of muftīs and judges as discussed by post-6th/12th century jurists of the Mālikī school, I conclude that Taqlīd resulted from the desire to have uniform rules rather than as a result of intellectual stagnation. While ijtihād was individualistic and solipsistic, Taqlīd was the result of group interpretation that provided an objective basis upon which legal decisions and legal rulings could be described as being either substantively correct or incorrect. Viewed in this light, Taqlīd was originally a desire to limit the discretionary power of legal officials, especially those at the bottom of the legal hierarchy. The desire to possess uniform rules found its logical outcome in the legal genre of the mukhtaṣar as it emerged in the 7th/13th century. The mukhtaṣar functioned as the authoritative collection of a legal school's doctrine, and, for that reason, I argue that Islamic law in the age of mukhtaṣars is best understood as a codified Common Law.
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Gerber, Haim. "Rigidity Versus Openness in Late Classical Islamic Law: The Case of the Seventeenth-Century Palestinian Muftī Khayr al-Dīn al-Ramlī." Islamic Law and Society 5, no. 2 (1998): 165–95. http://dx.doi.org/10.1163/1568519982599481.
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AbstractIn this study I reexamine some well-known generalizations about Islamic law prior to the impact of the West, e.g., the contention that Islamic law became increasingly closed, based more and more on blind imitation. My examination of the fatwā collection of the seventeenth-century Palestinian Muftī Khayr al-Dīn al-Ramlī suggests that increasing closure never took place. On the one hand al-Ramlī faithfully continues the tradition of his classical predecessors, or, in other words, he practices taqlīd by obligating himself to earlier authorities. On the other hand, his fatwās convey a sense of openness, flexibility, and liveliness. These characteristics are concretized in some of the major terms that he uses: ijtihād, or free discretion of the jurist in areas of the law that remained open; iṣtiḥsān, or relaxation of formal rules; and ʿurf, or local customary law, which, by definition, is changeable over time. In my view, the flexibility of Islamic law has been underemphasized in the scholarly literature, and hence it is on this factor in particular that I have chosen to concentrate.
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Buskens, Léon. "RECENT DEBATES ON FAMILY LAW REFORM IN MOROCCO: ISLAMIC LAW AS POLITICS IN AN EMERGING PUBLIC SPHERE." Islamic Law and Society 10, no. 1 (2003): 70–131. http://dx.doi.org/10.1163/15685190360560924.
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AbstractIn 1957-1958 Moroccan family law was codified in the Mudawwana, a text known for its close adherence to the classical Maliki tradition. Since the early 1980s the debate about reform has become more intense and widespread. The relatively limited reform of the Mudawwana in 1993 was closely linked to the beginnings of a process of cautious democratization. Since then the discussions have become more vehement, especially since the coming to power of a new government in 1998 consisting of former opposition parties. A year later this government presented a plan for extensive family law reforms. The plan has provoked considerable public debate over key concepts such as democracy, development, human rights, civil society, and ijtihād. Upon closer inspection, larger issues are at stake: Who may speak out in public and participate in politics? This new turn in the discussions is related to the emergence of a public sphere.
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Ramić, Šukrija. "THE PRONOUNCED (LITERAL) MEANING OF THE LEGISLATIVE TEXT (AL-MANṬŪQ) IN SHAFII SCHOOL OF LAW." Zbornik radova 17, no. 17 (December 15, 2019): 253–65. http://dx.doi.org/10.51728/issn.2637-1480.2019.17.253.
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This paper explores the theoretical interpretations of the pronounced meaning of the legislative text (al-manṭūq) in the Shafii school of law and the consequences of such an interpretation for the rules that the Shafiis came to through their legal reasoning (ijtihād). At the beginning of the work, the discipline of linguistics is explained in the context of the Methodology of Islamic Law (Uṣūlu-l-fiqh) as well as its significance for ijtihad, followed by the difference between the Ḥanafis and the Shafiis in the classification of textual allusions (ad-dalalāt) of legislative texts, and the linguistic and terminological definition of the concept of al-manṭūq in the Shafii school of law. Also, the classification of al-manṭūq in the Shafii school of law is presented. Providing examples, the author clarifies the significance of al-manṭūq in the Shafii school of law and the way in which the Shafiis used al-manṭūq in their argumentation in support of legal rules. Furthermore, the author presents the classification of al-manṭūq and the restriction of its meaning with respect to the mafhūm al-muwāfeqa and mafhūm al-muhālefe. Finally, the value of al-manṭūq and its legal status as well as the indications in Shariah are clarified.
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Ansori, Ansori. "Rekonstruksi Metodologi Fikih Kontemporer." Al-Manahij: Jurnal Kajian Hukum Islam 12, no. 2 (December 5, 2018): 329–40. http://dx.doi.org/10.24090/mnh.v12i2.1302.
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One of the causes of underdevelopment of Muslims is when fiqh is positioned equivalent to naṣṣ (Holy Scripture). When fiqh is equated with naṣṣ, fiqh becomes sacred, there is no courage for people to criticize it, let alone make changes to existing fiqh provisions. As a product of reason (ijtihād), fiqh is not intended as a final legal provision. The ijtihād carried out by the generation after the death of the Prophet Muhammad must be made an important lesson for the need for the development of Islamic law (fiqh) to keep abreast of the times. Another important thing is that applying fiqh law must not only follow fiqh products, but also must understand the process. This means that knowing the methods used by jurists (fuqahā’) to process fiqh births should not be ruled out. Understanding the methods used by jurists (fuqahā’) will open the development of fiqh in the global era, so that fiqh products as a guideline for Muslims will remain relevant and responsive and able to solve contemporary problems.
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Gould, Rebecca, and Shamil Shikhaliev. "Beyond the Taqlīd/Ijtihād Dichotomy: Daghestani Legal Thought under Russian Rule." Islamic Law and Society 24, no. 1-2 (March 8, 2017): 142–69. http://dx.doi.org/10.1163/15685195-02412p06.
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As one of the first scholarly studies of Jirāb al-Mamnūn, a collection of letters by the Daghestani Shāfiʿī scholar Ḥasan al-Alqadārī (1834–1910), this article challenges the ijtihād/taqlīd dichotomy within Islamic legal thought and argues for a more comprehensive understanding of the dialectic between reason and authority. Along the way, we examine the influence of al-Alqadārī’s taqlīd-based methodology on his attitudes toward confessional differences within and outside Islam. The article contributes to current debates on the role of reason and authority in the writings of Muslim scholars living under colonial rule.
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Ghaly, Mohammed. "Human Embryology in the Islamic Tradition." Islamic Law and Society 21, no. 3 (June 27, 2014): 157–208. http://dx.doi.org/10.1163/15685195-00213p01.
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The translation of Greek works on medicine and biology into Arabic and their wide dissemination, at the latest by the 6th-7th/12th-13th centuries, in different disciplines of the Islamic tradition were not without consequences, especially for fiqh (Islamic law). In their religio-ethical discussions, Muslim jurists addressed this Greek medical legacy, together with comments and additions made by Muslim and non-Muslim, especially Jewish, physicians. This essay starts with introductory remarks about the main approaches to medical views on human embryology in philosophy and theology. I then focus on the works of five Muslims jurists from the 7th-8th /13th-14th centuries, with special attention to the Mālikī jurist Shihāb al-Dīn al-Qarāfī (d. 684/1285) and the Ḥanbalī Ibn al-Qayyim (d. 751/1350), whose contributions to human embryology remain comparatively unexplored. My main thesis is that the introduction of medical views on human embryology to fiqh literature opened the door for post-formative jurists to practice ijtihād, sometimes on a large scale, by going beyond the established authority of the madhāhib (schools of law). In modern times, Muslim jurists who address human embryology, especially within the nascent of field of Islamic bioethics, have been influenced by these earlier discussions.
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Lucas, Scott C. "ABU BAKR IBN AL-MUNDHIR, AMPUTATION, AND THE ART OF IJTIHĀD." International Journal of Middle East Studies 39, no. 3 (August 2007): 368a. http://dx.doi.org/10.1017/s0020743807070894.
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This article introduces the legal methodology of independent mujtahid (legal scholar) Abu Bakr ibn al-Mundhir al-Naysaburi (d. 930) in order to shed light on the nature of ijtihād (independent judgment in a legal or theological question) on the eve of crystallization of the four Sunni legal schools. Ibn al-Mundhir's presentation of laws concerning punishment for theft indicates that the Qurʿan and Prophetic hadith played a modest role in early elaboration of Islamic law. Instead, the bulk of this early mujtahid's efforts were devoted to culling and evaluating legal opinions of the companions, successors, and, in particular, a small group of postsuccessor jurists. I conclude by locating Ibn al-Mundhir within the literature of juristic disagreement (ikhtilāf) and highlighting the features that make his writings exceptional within this tradition.
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Rokhmadi, Rokhmadi. "REKONSTRUKSI IJTIHĀD DALAM ILMU UṢŪL AL-FIQH." Al-Ahkam 22, no. 2 (October 11, 2012): 161. http://dx.doi.org/10.21580/ahkam.2012.22.2.9.
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<p>Al-Qur’an and Sunnah, needs of understanding and extracting optimally, so that the contents of law can be applied for the benefit of people. The way- to understand and to extract the contents in these two sources- called <em>ijtihād</em>. Thus, <em>ijtihād</em> is needed on <em>istinbāṭ</em> of law from many arguments of the texts (<em>naṣ</em>), eventhough it is <em>qaṭ’ī</em> in which the uṣūliyyūn have agreed that it is not the area for re-extracting to the law (<em>ijtihādiyyah</em>). The problem in this case is that even a <em>qaṭ’ī</em> argument according to the most of uṣūliyyūn has not been <em>qaṭ’ī</em> argument in the other <em>uṣūliyyūn</em> opinion. Reconstruction of <em>ijtihād</em> becomes an alternative, with some considerations: <em>First</em>, weight and tightening the requirements to become a mujtahid, which is almost impossible controlled by someone at the present time; <em>Second</em>, the increasing complexity of the problems faced by the ummat which is very urgent to get the solution; <em>Third</em>, let the period without <em>ijtihād</em> (vacuum of mujtahid) is contrary to the basic principles of Islamic law are always <em>sāliḥ li kulli</em> <em>zamān wa makān</em>. This paper present to discuss further about the urgency of the reconstruction of <em>ijtihād</em> in the challenge of modernity.</p><p>***</p><p>Al-Qur<ins cite="mailto:hasan" datetime="2015-02-17T11:11">’</ins>an maupun <ins cite="mailto:hasan" datetime="2015-02-17T11:11">s</ins>unnah sangat membutuhkan pemahaman dan penggalian secara optimal agar isi kandungan hukumnya dapat diterapkan bagi kemaslahatan umat. Cara untuk menggali dan mengeluarkan isi kandungan yang ada dalam kedua sumber tersebut dinamakan <em>ijtihād</em>. <em>Ijtihād</em> sangat dibutuhkan pada setiap <em>isti<ins cite="mailto:muthohar" datetime="2015-01-29T05:30">n</ins><del cite="mailto:muthohar" datetime="2015-01-29T05:30"></del>bāṭ </em>hukum dari dalil <em>naṣ</em>, sekalipun dalil <em>naṣ</em> tersebut bersifat <em>qaṭ'ī</em> yang oleh para <em>uṣūliyyūn</em> sudah disepakati tidak menjadi wilayah untuk dijitihadi lagi. Permasalahannya adalah bahwa sesuatu dalil <em>naṣ</em> yang sudah bersifat <em>qaṭ'ī</em> sekalipun oleh sebagian besar <em>uṣūliyyūn</em>, belum tentu dipandang <em>qaṭ'ī</em> oleh sebagian <em>uṣūliyyūn</em> yang lain. Rekonstruksi <em>ijtihād</em> menjadi sebuah alternatif, dengan beberapa pertimbangan: <em>Pertama</em>, berat dan ketatnya persyaratan-persyaratan menjadi seorang mujtahid, yang hampir tidak mungkin dikuasai oleh seseorang pada masa sekarang; <em>Kedua</em>, semakin kompleksnya permasalahan yang dihadapi oleh ummat yang sangat mendesak untuk mendapatkan solusi; <em>Ketiga</em>, membiarkan satu periode tanpa <em>ijtihād</em> (kevakuman mujtahid) adalah bertentangan dengan prinsip dasar hukum Islam yang selalu <em>sāliḥ li kulli zamān wa makān. </em>Tulisan ini hadir untuk mendiskusikan lebih jauh tentang urgensi rekonstruksi <em>ijtihād</em> dalam menghadapi tantangan modernitas.</p><p>***</p><p>Keywords: <em>ijtihād</em><em>, qaṭ'ī, ẓannī</em><em>, uṣūl al-fiqh</em></p>
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Mardanova, Dinara. "Полемика вокруг ‘ибадат между Шигабутдином Марджани и его оппонентами." Islamology 7, no. 1 (June 30, 2017): 180. http://dx.doi.org/10.24848/islmlg.07.1.09.
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Dinara Mardanova's article is focused on the problem of Ijtihād and Taqlīd through the debates of Tatar 'ulama' concerning the reform of Muslim law in the section of worship (ibādah). In connection with the problem of Ijtihād and Taqlīd the following issues are discussed: the question of the night prayer 'isha in the Volga-Ural region, the problem of the authority of legal sources, the question of the use of rational methods of cognition in religion as Shariah evidence. All these issues began to be widely discussed after the publication of the work of the famous writer and scholar Sh. Mardjani Nazura al-hakk in 1870. His work provoked the appearance of a number of critical essays, the most famous of which was Jaruda (1874). The analysis of the unfolding debates between Marjani and his opponents allows to see how Muslim scholars adapted the Islamic legal tradition to the social realities of life in the Russian Empire under the conditions of modernizing traditional society.
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Ayoub, Samy A. "A Theory of a State? How Civil Law Ended Legal Pluralism in Modern Egypt." Journal of Law and Religion 37, no. 1 (January 2022): 133–52. http://dx.doi.org/10.1017/jlr.2021.79.
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AbstractʿAbd al-Razzāq al-Sanhūrī (d. 1971), the father of the Egyptian legal code, theorized a relationship between dīn (religion) and dawla (state) that was key to his project. In this relationship, al-Sanhūrī posited a delineation between the spheres of dīn and dawla that allowed him to map these categories onto the existing distinction between matters of ʿibādāt (acts of worship) and muʾāmalāt (transactions) in Islamic law (fiqh). I propose that Islamic jurisprudential distinctions between ʿibādāt and muʿāmalāt—for al-Sanhūrī—was the ideal medium to maintain and police the borderlines between religion and state in the postcolonial Egyptian state. Al-Sanhūrī's objective was to keep the domain of dīn outside of state sanction and to facilitate a transition whereby the state's legal institutions assumed exclusive lawmaking powers based on its own independent legal reasoning in Islamic law (ijtihād). I argue that al-Sanhūrī was a committed comparatist, not a reformer of Islamic law. Al-Sanhūrī's legal project should be viewed as a faithful commitment to French comparative law as a method of legal inquiry and a reflection of his nationalist agenda of creating a unified legal order that cannot exist without relying upon indigenous forms of law and culture. Al-Sanhūrī saw Khedival legal pluralism as an obstacle for national sovereignty. As a result of the institutional and legal readjustments from the 1920s through 1950s in Egypt, al-Sanhūrī did not see a future for Islamic law in the emerging legal state apparatus outside of civil law strictures and insisted that Islamic courts and religious tribunals for Jews and Christians must be subsumed under nationalized secular state courts.
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Eldersevi, Suheyib, and Razali Haron. "An analysis of maṣlaḥah based resolutions issued by Bank Negara Malaysia." ISRA International Journal of Islamic Finance 12, no. 1 (November 16, 2019): 89–102. http://dx.doi.org/10.1108/ijif-09-2018-0103.
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Purpose This study aims to examine the resolutions issued by the Sharīʿah Advisory Council of Bank Negara Malaysia (SAC-BNM), which have recognized maṣlaḥah (public interest) as the basis of ruling to see the extent of its usefulness to the public and the extent of its adherence to the maṣlaḥah parameters. The study will also look into the opposing opinion to identify the basis of rejection and overall implication on Islamic finance based on opposing opinions of SAC-BNM and other bodies of collective ijtihād (juristic interpretation). Design/methodology/approach The study uses a qualitative approach by analyzing the SAC-BNM resolutions, which have been resolved based on maṣlaḥah. The study also applies the comparative approach by comparing the fatwa (Sharīʿah pronouncement) issuing bodies of Malaysia and the Gulf Cooperation Council countries. Furthermore, the secondary data is obtained from sources such as uṣūl al-fiqh (theory of Islamic jurisprudence) books, papers and relevant internet sources. Findings The study found that SAC-BNM’s resolutions are in line with some of the major maṣlaḥah parameters mentioned in the uṣūl al-fiqh sources i.e. must not contradict with the Qurʾān and the Sunnah. While looking at the other two criteria of being in line with ijmāʿ (consensus) and having a general impact, such resolutions might not fulfill the criteria of valid maṣlaḥah considering, respectively, the stand of collective ijtihād or the impact on the group of customers and institutions. Originality/value Most available shari’ah (Islamic law) research considers the perspective of fiqh (Islamic jurisprudence) while analyzing the issue of maṣlaḥah. This study aims to conduct analysis based on uṣūl al-fiqh. Moreover, maṣlaḥah itself is a broad concept, which can be abused. Hence, this study discusses the parameters of maṣlaḥah to understand the validity of an important juristic tool in Sharīʿah.
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Malik, Ahsen. "The Necessity of a Standard Prenuptial Agreement for American Muslims." Journal of Islamic Faith and Practice 5, no. 1 (March 19, 2024): 31–52. http://dx.doi.org/10.18060/28093.
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For many Sunni Muslims in the U.S., one of the most important documents in their life might be a marriage contract that unintentionally contains an impermissible amount of gharar (uncertainty). There are seldom disputes when contracts go smoothly, even if gharar is present, but when there are disagreements, it is a cause of major strife. If two Muslims get married, they usually perform a nikāḥ (Islamic marriage contract/ceremony) and then sign a civil marriage contract in their state of residence. Although it would seem that the nikāḥ would imply certain terms for dissolution perhaps based on a classical school of Islamic law or contemporary ijtihād (juristic reasoning) adjusted for modern times and circumstances, the actual authority belongs to a non-Muslim judge and legal system. Does this legal system have a moral right over Muslim marriage contracts in this country, or is the use of such a court an un-Islamic infringement on the other party’s rights and therefore a violation of God’s law? This author recommends couples should explicitly discuss this issue prior to marriage and proposes a standardized prenuptial agreement to minimize unnecessary disputes.
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Lhost, Elizabeth. "To Flower and Fructify: Rational Religion and the Seeds of Islam in Nazir Ahmad’s (1830–1912) Late-career Religious Non-fiction." Journal of Islamic Studies 31, no. 1 (August 14, 2019): 31–69. http://dx.doi.org/10.1093/jis/etz032.
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Abstract Known primarily for his popular and moralizing novels, Nazir Ahmad’s (1830–1912) accomplishments as a scholar of Islam are often omitted from his biography. Yet in addition to working for the British Government of India, participating in Muslim social, political, and educational initiatives on the subcontinent, and demonstrating his linguistic and legal acumen by translating the law codes of British India into vernacular Urdu, Nazir Ahmad also translated religious texts and penned his own original compositions on themes of religion, society, and ethics. Reviewing the ideas presented in his comprehensive three-volume al-Ḥuqūq va-l-farāʾiż (1905–6) and his shorter catechism Ijtihād (1906), this article outlines Nazir Ahmad’s theory of worldly religion and introduces his concept of Islamic humanism in response to ulema-centric approaches to Islamic revival and reform in British India.
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Fanani, Akhwan. "PERSPEKTIF COULSON TERHADAP RUMUSAN DIALEKTIKA HUKUM ISLAM." Al-Ahkam 22, no. 2 (October 11, 2012): 121. http://dx.doi.org/10.21580/ahkam.2012.22.2.7.
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<p class="IABSSS">Law will always evolve and dialectic with social dynamics. Coulson see that the dynamics of the Islamic law occurs through the efforts of reinterpretation of Islamic sources when there is a gap between theory and practice. With a historical approach, Coulson mapped the development of Islamic law so that he made six dialectic formulation of Islamic law which is an in-depth reading in seeing the historical development of Islamic law. According to Coulson, Islamic law is idealistic and away from social reality. Islamic law is determined by social facts and reduced as a man-made law. Coulson’s propositions departed from empirical studies of the historical development of Islamic law. Coulson formulas can be used to understand further the reality of the development of Islamic law, so Muslims can understand what really happened in the history of Islamic law and scientific perspective. It can be used to perform introspection for Muslims to develop further the Islamic legal thought and in accordance with the existing social development. This paper intends to review critically the ideas of Coulson.</p><p class="IABSSS">***</p><p class="IABSSS">Hukum akan selalu berkembang dan berdialektika dengan dinamika sosialnya. Coulson melihat bahwa dinamika hukum Islam terjadi melalui upaya penafsiran kembali sumber-sumber Islam ketika ada kesenjangan antara teori dengan praktek. Dengan pendekatan historis Coulson memetakan perkembangan hukum Islam sehingga ia membuat enam rumusan dialektika hukum Islam yang merupakan sebuah pembacaan yang mendalam dalam melihat sejarah perkembangan hukum Islam. Menurut Coulson hukum Islam bersifat idealistik dan jauh dari realitas sosial dan apa yang ia inginkan adalah hukum Islam ditentukan oleh fakta-fakta sosial dan direduksi sebagai hukum buatan manusia. Proposisi-proposisi Coulson berangkat dari penelitian empiris mengenai sejarah perkembangan hukum Islam. Rumusan-rumusan Coulson dapat digunakan untuk lebih memahami realitas perkembangan hukum Islam, sehingga umat Islam bisa memahami apa yang sebenarnya terjadi dalam sejarah perkembangan hukum Islam dan perspektif keilmuan. Hal itu bisa dipergunakan untuk melakukan introspeksi bagi umat Islam untuk mengembangkan pemikiran hukum Islam lebih lanjut dan sesuai dengan perkembangan sosial yang ada. Artikel ini bermaksud untuk mereview secara kritis pemikiran Coulson tersebut. </p><p class="IABSSS">***</p><div class="WordSection1"><p class="IAKEY" align="left">Keywords: dialektika, Hukum Islam, <em>conflict</em><em> and tension</em>, <em>ijtihād</em></p></div>
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Marjuni, Marjuni, and Moch Khafidz Fuad Raya. "LIBERAL THINKING IN SALAF PESANTREN, IS IT POSSIBLE? (FREEDOM OF THOUGHT THE SANTRI MA’HAD ALY SUKOREJO, SITUBONDO)." Jurnal Tatsqif 19, no. 2 (December 14, 2021): 175–91. http://dx.doi.org/10.20414/jtq.v19i2.4307.
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The existence of Ma’had ‘Aly is an exciting thing and brings a narrative of controversy. Since being legalised in 2002, Ma’had ‘Aly has transformed into a modern Islamic educational institution under the auspices of a traditional Salaf pesantren. This article aims to explain Ma’had ‘Aly as an Islamic educational institution that specifically (takhaṣṣuṣ) produces fiqh experts and supports freedom of thought in exploring Islamic law. The research method uses a qualitative approach by studying documents extracted from the history of Ma’had ‘Aly, the takhaṣṣuṣ curriculum, and the Tanwirul Afkar (TA) bulletin. The results reveal the integration of the Ma’had ‘Aly curriculum, which is combined with the general curriculum and contemporary scriptures. Second, the controversy over TA as a forum for students to manifest their competence as fuqaha on various developing issues. Some of the controversial issues decided by TA were allowing interfaith marriages, allowing non-Muslim Indonesian President elections, and similarities between Islam and Christianity in relations and history. Some realities above show that Islamic liberal thought has emerged in salaf pesantren through Ma’had ‘Aly. The contribution of this research provides novelty that apparently Ma’had ‘Aly is trying to show that the door of ijtihād in the excavation of Islamic jurisprudence is still wide open.
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Shihan, Mohammad, Abdulhamid Mohamed Ali Zaroum, and Muhammad Amanullah. "Universal Maqāṣid al-Sharīʿah and Their Modern Application: Towards Ensuring a Peaceful and Secured Environment." Al Hikmah International Journal of Islamic Studies and Human Sciences 4, no. 4 (December 31, 2021): 466–95. http://dx.doi.org/10.46722/hkmh.4.4.21d.
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The maqāṣid theory is a popular trend in Islamic legal theories. Contemporary scholars view it as a valid method of interpreting the revealed text and as a valuable instrument for solving contemporary issues because it helps reform Islamic thought and civilization. Indeed, the idea of maqāṣid al-Sharīʿah has been widely studied and expanded by modern scholars of Islamic legal theory. Chiefly, Ibn ͑Ashur and contemporary MaqÉsid scholars renewed the scholarly discourse and ensured its proliferation and wide acceptance in legal studies. It has emerged as a new science that connects with all other legal disciplines. Thus, scholars firmly assert that the maqāṣid al-Sharīʿah constitute the most important intellectual means and methodologies for Islamic reform today. Consequently, the researchers aim to examine the modern discourse of Maqāṣid al-Sharīʿah and the latest developments beyond the universal MaqÉÎid. Mainly, the researchers scrutinize the two objectives namely the preservation of the environment via the protection of life and wealth. Accordingly, this article follows the qualitative method of data collection and analysis. Among the findings of the research is that the latest developments of Maqāṣid al-Sharīʿah, open the door of ijtihād widely to create ample areas for jurists to regulate the affairs of the Muslim ummah. Further, the maqāṣid al-Sharīʿah do not reflect only the objectives of Islamic law; their role goes beyond and is used to formulate basic principles and values related to global peace and human welfare. Hence, they have greatly contributed to the revival of Islamic thought and have opened a wider space for the application of Islamic law pertaining to peaceful environment.
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Rizal, Fahmi Ali Syaifuddin. "Criticism Towards Shaḥrūr's Concept of The Prophet's Sunnah." ISLAMICA: Jurnal Studi Keislaman 15, no. 2 (March 1, 2021): 318–48. http://dx.doi.org/10.15642/islamica.2021.15.2.318-348.
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This article deals with the concept of Sunnah proposed by Muḥammad Shaḥrūr and offers a criticism towards his tendency to the denial of the Prophet’s Sunnah (inkār al-Sunnah). Shaḥrūr rejects the Ḥadīth and Sunnah as the second source of Islamic law, by reformulating and redefining the concept of Ḥadīth and Sunnah. Shaḥrūr distinguished between Ḥadīth and Sunnah. According to him, the Ḥadīth is the Qur’ān itself, and the Sunnah has been the practical application (ijtihād) of the Prophet to implement what was revealed to him. Shaḥrūr’s rejection and denial of Ḥadīth and Sunnah are based on the argument that all Ḥadīths were filled with the story of Isrā’īliyyāt. The tendency towards inkār al-Sunnah represented by Shaḥrūr is not a completely new idea, since this position was also conceived by several previous figures. However, despite the fact that Shaḥrūr’s inkār al-Sunnah as argued on the basis of a new approach to Ḥadīth studies, this article reveals that Shaḥrūr’s understanding of, and his tendency to deny, Ḥadīths or Sunnah reflect his opposition against orthodox views on the Prophet’s Sunnah.
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Jackson, Sherman. "Taqlīd, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory:." Islamic Law and Society 3, no. 2 (1996): 165–92. http://dx.doi.org/10.1163/1568519962599104.
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AbstractThe controversy surrounding ijtihād and Taqlīd is well-known in modern scholarship. In the present essay, I offer an alternative to the leading views on this crux by treating the issue of scope in the jurisprudential writings of Shihāb al-Dīn al-Qarāfī as a reflection of the manner and direction in which the Islamic legal tradition tended to develop subsequent to the so-called settling down of the four schools of law. At the center of this development stood the highly intricate and spirited institution of Taqlīd, and I posit a causal relationship between the emergence of this institution and Muslim jurists' increased interest in issues such as scope. I also treat the technical aspects of al-Qarāfī's theory and compare it with the theories of a number of his predecessors.
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Rachmadhani, Fajar, Mualimin Mochammad Sahid, and Ahmad Wifaq Mokhtar. "IMPLEMENTATION OF THE ISLAMIC LAW TRANSFORMATION’S RULE (TAGHAYYUR AHKĀM) DURING COVID-19 PANDEMIC IN THE PERSPECTIVE OF MAJELIS TARJIH MUHAMMADIYAH IN INDONESIA." Malaysian Journal of Syariah and Law 10, no. 1 (June 1, 2022): 108–17. http://dx.doi.org/10.33102/mjsl.vol10no1.345.
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The study entitled " Implementation Of The Islamic Law Transformation’s Rule (Taghayyur Ahkām) During Covid-19 Pandemic In The Perspective Of Majelis Tarjih Muhammadiyah In Indonesia" aims to uncover and analyze one of the methods and rules of law-making (istinbāth ahkām) carried out by the Muhammadiyah fatwa institution, the Majelis Tarjih dan Tajdid, or known as "Manhaj Tarjih Muhammadiyah." One of the many methods used by Majelis Tarjih in issuing legal decisions and fatwas is the Rules of Islamic Law Transformation (taghayyur ahkām). The research also attempts to contextualize the rules of Islamic law transformation with the decisions or guidelines for the implementation of worship (Ibadah) that have been issued by the Muhammadiyah Central Leadership through the Majelis Tarjih, especially during the current Covid-19 pandemic. The results of this study are beneficial both practically and theoretically. The practical benefit of this research is that it may provide guidelines for the implementation of worship during the Covid-19 pandemic based on argumentative arguments and the principles and objectives of Islamic law, one of which is guarding religion (Hifz ad-Dīn) and guarding human lives (Hifz an-Nafs). Meanwhile, the theoretical benefits from this research are to expand the knowledge and discourse of Islamic scholarship, especially in the field of Islamic law. Thus, Islam can manifest in the midst of mankind to provide real solutions to existing problems. This research uses qualitative research focusing on library research with descriptive analysis. Consequently, the researchers applied the Ijtihād of Majelis Tarjih’s Method known as "Manhaj Tarjih Muhammadiyah" written by Syamsul Anwar as well as based on the results of the Tarjih National Assembly (Munas) XXX in Makassar in 2018, also the decision of the Muhammadiyah Central Leadership No. 02/EDR/1.0/E/2020 regarding Guidelines for Worship in Covid-19 Emergency conditions and several other Tarjih fatwas related to guidelines for carrying out worship during the Covid-19 pandemic as primary data. In addition, the secondary data are from various sources, such as fiqh books, ushul fiqh, and maqaṣid as-syarī'ah. Besides, the study uses a content analysis approach to bring up the messages objectively and systematically.
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Razi, Naseem. "A Comparative Study of Maṣlaḥah and Mischief Rule: Pakistani Perspective." Journal of Islamic Thought and Civilization 11, no. 1 (May 5, 2021): 335–54. http://dx.doi.org/10.32350/jitc.111.18.
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At present, almost all the legal systems are concerned with establishing a flexible interpretive policy to make the law to resolve the everyday complex issues for the benefit of the people at large. It is, however, a matter of great concern that the higher courts in Pakistan are still following static and foreign interpretive modes like a literal rule, the golden rule, and mischief rule etc, in the presence of dynamic interpretive principles of Islam. In this context, this research aims to analyze critically, the mischief rule and to present maslahah, a vibrant Islamic interpretive principle. This article argues that the Holy Prophet (SAW), his companions and the traditional Muslim jurists had to decide the contemporary issues by the way of maṣlaḥah which led to the development of Islamic jurisprudence and resulted in the ease of the people. While interpretive rules of English common law are static and have become outdated. This research, thus, concludes that unlike mischief rule, maslaha is more flexible and favorable by Islam for resolving the present-day socio-economic issues of the people. It recommends the higher courts of Pakistan to follow the principle of maṣlaḥah during the process of interpretation. It is also acclaimed that the Renaissance of this vibrant principle of ijtihād would be a revival of the interpretive policy of the Prophet (SAW), his companions and the traditional Muslim jurists. It would also lead to the development of Islamic jurisprudence in the light of changed context.