International Journal of Fiqh and Usul al-Fiqh Studies (IJFUS)
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Application of Istiṣḥāb and Istiḥsān in Islamic Law of Inheritance: An Analytical Study: تطبيقات الاستصحاب والاستحسان في الميراث الإسلامي: دراسة تحليلية
No full textThis paper explores the application of the Islamic jurisprudential principles of Istiṣḥāb (presumption of continuity) and Istiḥsān (juristic preference) within the realm of Islamic inheritance law (Mirāth). The methodology involves a conceptual discourse that explains Istiṣḥāb as the presumption that a previous state or ruling continues to remain valid unless proven otherwise, and Istiḥsān as the departure from strict analogical reasoning (qiyās) or text towards stronger evidence or interpretation that better aligns with the objectives (Maqāṣid) of Sharīʿah. This is followed by a detailed analysis of their application in various inheritance cases, including mass fatalities, obligatory bequests (Waṣiyyah Wājibah), and the inheritance rights of hermaphrodites and fetuses, among others. The research problem revolves around demonstrating how these principles facilitate juristic reasoning (ijtihād) in Mirāth, enabling the law to adapt to evolving familial structures and contemporary challenges, given the inadequate scholarly focus on their comprehensive application in modern contexts. The key research findings include the adaptability of Mirāth to societal changes, the ability to address complex scenarios, and balancing between rigidity and flexibility. It lays a good foundation for future research
The Reality of Utilizing Interest-Based Wealth in the Charitable Islamic Institutions in West Sumatra, Indonesia: Problems and Solutions: واقع استغلال الأموال الربوية في المؤسسات الخيرية الإسلامية في سومطرة الغربية إندونيسيا: إشكالياته وحلوله
No full textAccording to the majority of modern Muslim scholars, conventional bank interest is ribā, which is forbidden and must be depleted on charitable works. Depleting them means using and benefiting from them in ways that are advantageous to Muslims. It is necessary to pay attention to the management system when using it as one of the sources of financing charitable works. This ensures that it does not violate Islamic and national laws. This research aims to understand the reality of the utilization of ribā in West Sumatera, which is one of the largest Islamic provinces in Indonesia. It seeks to protect these assets from wasting, while also explores whether it discourages Muslim clients from continued interaction with conventional banks or not. The researchers rely on four basic approaches in this study: the inductive approach, the analytical approach, the field study, and the comparative approach. Among the most significant problems confronting Islamic Charitable Institutions in West Sumatera is the lack of directives issued by the Indonesian Council of Islamic Scholars on how to allocate these funds through charitable institutions. Furthermore, the religious ministry has not issued any official decisions on the ruling regarding conventional bank interest. As a result, this has become a sensitive topic, which makes the institutions avoid open management of it. In this regard, institutions and the government should take three types of actions: intellectual, political, and practical
Importance of Maqāṣid of Waqf in the Contemporary Jurisprudential Ijtihad: A Forward-looking Analytical Study in Afghanistan: أهمية مقاصد الوقف في الاجتهاد الفقهي المعاصر: دراسة تحليلية استشرافية في أفغانستان
No full textThe significance of waqf, with its jurisprudential nature, economic format, and maqasidic formulation, serves as a key tool in advancing Islamic social finance within the contemporary Islamic financial system. This importance is reflected in various global experiences, and Afghanistan is striving to follow suit. This study aims to unveil the higher Sharīʿah objectives (Maqāṣid al-Sharīʿah) of the waqf system and their significance in contemporary waqf related ijtihad. Examining the maqasidic dimension of the waqf system is one of the most crucial discussions in the evolution of waqf in our present era, alongside jurisprudential, legal, and economic studies. The study employed a qualitative method, using inductive and analytical approaches to establish and regulate the concept of waqf related Maqāṣid al-Sharīʿah and their associated foundational issues. This was done to establish the legal foundations of waqf and to analyze its current state and development prospects in Afghanistan. The study concluded with several findings and recommendations. Most important of them are numerous Maqāṣid al-Sharīʿah have been achieved through waqf, while others are hindered by current challenges in Afghanistan; the development of specific Maqāṣid al-Sharīʿah of waqf requires legal regulations that meet the demands of the modern era. It is recommended to establish a specialized body in Afghanistan dedicated to waqf affairs, relying on scientific centers, and jurisprudential, legal, and economic expertise, as well as contemporary global experiences
The Legal Provisions and Judicial Rulings of Will for Heirs’ Cases in Malaysia's Sharīʽah High Courts: المواد القانونية والأحكام القضائية لقضايا الوصية للوارث في المحاكم الشرعية العليا بماليزيا
No full textThis research aims to study the topic of "The Legal Provisions and Judicial Rulings of Will for Heirs’ Cases in Malaysia's Sharīʽah High Courts". The research delves into clarifying the reality of the law regarding will for heirs in Malaysia and demonstrates the effectiveness of judicial rulings in Malaysia's Sharīʽah High Courts concerning the issues. Upon examining cases of will for heirs, it becomes apparent that a significant number of members within the Muslim community in Malaysia have chosen to bequeath their entire estate to their heirs. In essence, a will is valid for non-heirs within one-third, while two-thirds are allocated to all rightful heirs according to Islamic inheritance laws. This presents an issue as many Malaysians may be unfamiliar with the legitimacy of inheritance laws and the nature of will for heirs. The researchers adopt a descriptive approach to clarify the subject matter, an analytical approach to analyze cases of will for heirs in Malaysia's Sharīʽah High Courts and their legal applications, and a field study involving personal interviews with judges and the research officers in the Sharīʽah High Courts of three selected states in Malaysia: Selangor, Negeri Sembilan, and Perak. Among the significant results obtained from the research is that the implementation of will for heirs in Malaysia's Sharīʽah High Courts depends on the consent of the heirs, aligning with Islamic principles and in accordance with the Muslim Wills Enactment and Administration of The Religion of Islam Enactment. The study suggests that the Islamic Religious Council (MAIN) for the remaining states in Malaysia, excluding the six states (Selangor, Negeri Sembilan, Malacca, Kelantan, Pahang, and Sabah), should take proactive steps to codify the Muslim Wills Enactment for their states, considering acceptable opinions derived from the Shafiʽī school of thought. With the existence of legal provisions specific to will for heirs, judges in Malaysia's Sharīʽah High Courts would find it easier to arbitrate cases related to will for heirs with precision and efficiency
Means of Modern Criminal Evidence for Testimony: A Comparative Study between Sunnah and Libyan Law: وسائل الإثبات الجنائي الحديثة للشهادة: دراسة مقارنة بين السنة والقانون الليبي
No full textThe researchers discuss about an important topic through which they shed light on the effects of modern means of testimony on Libyan society in light of the Sunnah of the Prophet. This study aims to clarify the concept of testimony and its features, the position of modern means of proof in the Sunnah of the Prophet, and the effects of these means on Libyan law. This study approaches to compare different elements to understand the differences and similarities between them. The central problem of this topic is the modern development of means of proof for testimony and its impact on the Sharīʽah courts. Its value and the efforts of the Libyan legislator in these means are demonstrated. We also presented the extent of the authenticity of modern means of testimony in the Sunnah of the Prophet, following in this the most accurate writings about the means of proof, and relied on the Sunnah, following the method of reasoning according to the companion and jurist ʽAbd Allāh bin ʽUmar, may Allah be pleased with them both. We explained the modern means of testimony in the Prophetic Sunnah and its pillars in terms of criminal and Sharīʽah proof, then we explained the way in which these means were used in terms of criminal and Sharīʽah proof. We also explained the efforts of the Libyan jurists towards these means, and then we proceeded to detail in talking about them according to the Libyan legislator in terms of Proof. Then we talked about its characteristics, conditions, scope of proof, and its validity in proof. Applied examples of these means have been mentioned. The most prominent feature of this study is that it shed light on the types of means of proof in the Sunnah of the Prophet, and it has contributed to reviewing the place of proof by testimony in Libyan society
Autopsy as a Means of Criminal Evidence: A Comparative Juristic Study: التشريح وسيلة من وسائل الإثبات الجنائي: دراسة فقهية مقارنة
No full textAn autopsy is a crucial method for detecting crime and is included in the Code of Criminal Procedure as one of the essential procedures for obtaining evidence, especially biological evidence, in the body of the deceased to determine the cause of death. Despite this, some jurists maintain that autopsy is not permissible because it harms the dead, and Sharīʽah prohibits all forms of aggression and harm to humans, whether they are alive or dead. This study aims to shed light on the extent to which the principle of necessity is allowed in the process of forensic autopsy, and the importance of this study lies in clarifying the ruling of necessity from the Islamic perspective. The researchers used an inductive method to collect information and a comparative analytical study, and the interview which was conducted with forensic doctors and the police to collect information about the practice of autopsy in Malaysia. The researchers discovered that the cases in which the autopsy was performed in Malaysia are in accordance with the Sharīʽah, due to their necessity
The Renewal of Islamic Jurisprudence Between Originality and Modernity: A Comparative Study: تجديد الفقه بين الأصالة والحداثة: دراسة مقارنة
No full textThis paper addresses the topic of ‘renewal’ within Islamic jurisprudence. Currently, the discourse is broadly categorized into two main methods: the first method relies on the original internal mechanisms (contained within the science of Uṣūl al-Fiqh) to renew Islamic jurisprudence. The second method adopts the tenets of modernity and applies principles of historicity to contextualize the divine rules and revealed texts to a particular time and place. Consequently, solutions contained within revelation are confined to a specific historical context and are not intended to be universal. Within this second method, revelation is not deemed to be a valid source to solve contemporary issues unless they are subordinate to modernist interpretations. The first method is posed with the following challenge: is the Islamic jurisprudence that addressed problems in the past capable of providing solutions to new problems without needing to make any changes? This paper utilizes a comparative and analytical approach to compare the following two claims: the claim that the original method of Islamic jurisprudence is capable of renewal and the claim that Islamic jurisprudence is contingent upon modernity for reform. We conclude that the renewal is not dependent on displacing Islamic jurisprudence by subjecting it to modernist reinterpretations. Additionally, the doors for renewing Islamic jurisprudence cannot be opened free of parameters. The second claim rests upon the assumption that the renewal represents progress whereas tradition represents backwardness or decadence. The right approach must not trivialize solutions simply on the merit of them being old. Rather, the true renewal is to tackle any novel situation and provide its solution that is in accordance with the divine revelation and cognizant of the reality at hand. Applying rules to relevant scenarios which lack an explicit text relating to them must involve the use of sound ijtihād (i.e. following steps and requirements of ijtihād)
Sharīʽah Rulings and Important Benefits of Recitation of Ṣalāh Upon the Prophet ﷺ: أحكام شرعية وفوائد مهمة لقراءة الصلاة على النبي ﷺ
Get PDFMuslims who pray five-time daily prayers recite ṣalāh upon the Prophet (ﷺ) regularly. However, many of them neglect or do not give importance to its recitation outside the prayer. The reason of this negligence primarily goes back to their ignorance about the numerous benefits of this recitation and disadvantages of not reciting it. Using the descriptive and analytical methods and based on the Qur’ānic verses, aḥādīth of the Prophet peace be upon him (ﷺ) and opinions of Muslim scholars, this paper will highlight the rulings of the recitation of ṣalāh upon the Prophet (ﷺ) inside and outside the prayer. Likewise, it will focus on the benefits of this recitation and disadvantages of not reciting it. This paper concludes that the preferable view about the recitation of ṣalāh inside the prayer is that it is sunnah mu’akkadah; and the preferable view about its recitation outside the prayer is that it is obligatory after each hearing of the name or mention of the Prophet (ﷺ), and it is recommended to recite it as much as possible without any specific limit