33 research outputs found
Appraising the Legal Position of Parents Under The Qiṣāṣ Law: Immunity or A Waiver: تقييم الوضع القانوني للوالدين في القصاص: بين الحصانة والإعفاء
No full text الإسلام يحث المؤمنين ليكونوا حماة فيما بينهم في كل زمان ومكان. عليهم أن يبسطوا جناح الاحترام والحفاظ على شرف إخوانهم وعرضهم من الجنس البشري. لا يسمح الدين أبداً الحاق أي ضرر بأي شخص دون اتباع الإجراءات القانونية الواجبة. لقد اعتبر الإسلام مفهوم "العدالة الاجتماعية" نقطة مهمة في نظام العدالة الجنائية. وهكذا، حدد القانون الإسلامي الجرائم والأضرار (الجنايات) وكذلك الجرائم الأخرى، كما حدد العقوبات على مثل هذه الجرائم. يعاقب القانون المجرمين بغض النظر عن وضعهم البيولوجي أو جنسهم أو انتمائهم أو خلفيتهم. ومع ذلك، يخفف القانون العقوبات لصالح أشخاص معينة دون إعفائهم من المسؤولية في بعض الظروف. وبالتالي، فلا يمكن اعتبار تخفيف العقوبة في الإسلام بمثابة استثنائية، لأن الهدف الرئيسي للقانون هو الحفاظ على العدالة بين النوع البشري. في الآونة الأخيرة، يختبئ الكثير من الناس تحت الستار القانوني ليستغلوا من أفعالهم. وأن العديد من جرائم القتل والإصابات الجسدية الخطيرة التي ارتكبها أشخاص كان من شأن مسؤوليتهم توفير الحماية لضحاياهم الذين قتلوا أو جرحوا. من المعروف أن الآباء هم منتجون وحامون لمنتجاتهم، لكن عدداً منهم في الوقت الحاضر يزعم أنهم ارتكبوا أو ساعدوا أو حرضوا على جرائم القتل أو إلحاق الأذى البدني بمنتجاتهم. وبالتالي، لا يمكن فصل هذا الموقف عن الفكرة الخاطئة بنظرية ترسيم الحدود بين "الحصانة" و"الإعفاء" في القصاص. وهذه الورقة تبحث عن حقيقة موقف الشريعة الإسلامية نحو الوالدين فيما يتعلق بالقصاص بين "الحصانة" و"الإعفاء".
كلمات مفتاحية: القانون الجنائي الإسلامي، قانون القصاص، استثناء الوالدين، الدفاع العامIslam always enjoins the believer to be their brother’s keeper. They should protect, respect, and preserve the honor and integrity of their fellow human beings. The religion does not allow any harm to be inflicted upon any person without following the due process of the law. Islām considers the concept of rendering “justice for all” as a very significant element in its criminal justice system. Thus, the Islāmic law of crimes and torts (jināyāt) spares no expense and defines all the crimes and as well as their prescribed punishments. The law punishes offenders equally regardless of their biological status, sex, affiliation, or background. However, in some circumstances, the law mitigates punishments in favor of specific people without exonerating them in toto from liability. Mitigation of punishment in Islām therefore, cannot be seen as a grant of immunity since the main objective of the law is to maintain justice amongst all. In recent times, many people hide under the guise of the law in order to take advantage of their actions. Many cases of murder and grievous bodily injuries were alleged to have committed by persons whose responsibilities were to provide protection to their murdered or injured victims. Parents are known to be producers and protectors of their progeny, but quite number of them nowadays are alleged to have committed or aided or abetted the crimes of murder or infliction of bodily harm against their progeny. Hence, this fact cannot be detached from the misconception that is deeply involved in demarcating between “immunity” and “a waiver” under the law of Qiṣāṣ. It is based on this fact that the paper examines the position of parents vis-a-vis the law of Qiṣāṣ with a view to differentiate the concept of “waiver” from that of “immunity”.
Keywords: Islāmic Criminal Law, Law of Qiṣāṣ, Immunity of Parents, Waive
Doctrine of khiyar al-ayb (option caused by defect) as proposed by Muslim jurists and its maqasid in Islamic transaction
No full textIslam is the religion revealed by Allah swt and therefore one of the most important aspect of religion is justice. Thus,
Islam stresses on the importance of justice in all elements of it in regard to various injunctions revealed by Allah. This
paper attempts to explain the meaning and doctrine of khiyar al-Ayb as highlighted by Sunni Muslim jurists of four
different schools of law. As proposed by Muslim jurists, al-ayb implies a latent fault, flaw, blemish or defect, which
exists in the goods at the time of contract taking place, and substantially impairs the value of the goods to the
recipient. On account of defective products, is the buyer consequently has the right of option either to ratify the
contract with full payment or revoke it entirely? Is the buyer may also accept the goods and ask for compensation or
(al-irsh) on the possible loss due to such defect? Is the any conditions for the buyer to revoke his contract on the
account of defective products that he or she has purchased? This paper will try to answer all of these questions by
highlighting various issues in khiyar al-ayb starting from the definition of khiyar al-ayb, Legality of it, Conditions for
valid option in respect to khiyar al-ayb as mentioned by Muslims jurists, and also maqasid behind the legality of
khiyar al-ayb. This paper also will highlight about the irremovable and Persuasive or reasonable defect in regard to
khiyar al-ayb as highlighted by our Muslim jurists. This paper will also explain about the views of Muslim jurists from
different schools of Law in regard to Optional period in khiyar al-ayb, is it Immediately after the buyer notices about
the defect (ala al-fawr), or is there any period of time in which the buyer having the right to revoke his transaction if
there is any defects on his goods
Appraising the legal position of parents under the qiṣāṣ law: immunity or a waiver
No full textIslam always enjoins the believer to be their brother’s keeper. They should protect, respect, and preserve the honor and integrity of their fellow human beings. The religion does not allow any harm to be inflicted upon any person without following the due process of the law. Islam considers the concept of rendering “justice for all” as a very significant element in its criminal justice system. Thus, the Islamic law of crimes and torts (jinayat) spares no expense and defines all the crimes and as well as their prescribed punishments. The law punishes offenders equally regardless of their biological status, sex, affiliation, or background. However, in some circumstances, the law mitigates punishments in favor of specific people without exonerating them in toto from liability. Mitigation of punishment in Islām therefore, cannot be seen as a grant of immunity since the main objective of the law is to maintain justice amongst all. In recent times, many people hide under the guise of the law in order to take advantage of their actions. Many cases of murder and grievous bodily injuries were alleged to have committed by persons whose responsibilities were to provide protection to their murdered or injured victims. Parents are known to be producers and protectors of their progeny, but quite number of them nowadays are alleged to have committed or aided or abetted the crimes of murder or infliction of bodily harm against their progeny. Hence, this fact cannot be detached from the misconception that is deeply involved in demarcating between “immunity” and “a waiver” under the law of Qisas. It is based on this fact that the paper examines the position of parents vis-a-vis the law of Qiṣāṣ with
a view to differentiate the concept of “waiver” from that of “immunity”
İbn Haldun’un iktisadi düşüncesi: Sukuk piyasası için bir örnek model
No full textThe purpose of this paper is to determine the principle of Ibn Khaldun’s economic thoughts in Sukuk markets. Sukuk market has surprisingly risen in recent years. However, some challenges hinder the potentiality of sukuk market. The notable problems are lack of standardization, lack of inadequate trading platforms, lack of low level of sukuk rates, lack of market structure of sukuk for retail investors and lack of global Islamic banking institutions. Apart from that, some other factors that hamper sukuk market’s growth like lack of legislative framework, lack of tax law framework, lack of Shari’ah governance framework, lack of corporate sukuk issuances and diversified investor base. In order to overcome the constraints and improve the growth of sukuk market, one of the Ibn Khaldun’s economic model that entails eight categories, has been proposed in this work while Ibn Khaldun proposed several economic structures in literatures other than the proposed one.Bu makalenin amacı Sukuk piyasaları için İbn Haldun’un iktisadi düşüncelerinin temelini tespit etmektir. Sukuk piyasaları son yıllarda hızlı bir yükseliş yaşamaktadır. Ancak bazı meydan okumalar Sukuk piyasalarının potansiyelini sınırlamaktadır. Bu problemler standartların olmayışı, uygun olmayan alım-satım altyapıları, düşük sukuk oranlarının olmayışı, küçük yatırımcı için sukuk piyasa yapısının eksikliği, global ölçekte İslami bankacılık kurumlarının olmayışı olarak sıralanabilir. Bunun yanında kanuni çerçeve ve vergi alanında çerçeve eksikliği, şeriat yönetişimi alnındaki eksiklikler, kurumsal sukuk ihracı eksikliği ve yatırımcı çeşitliliğinin yeterli olmaması gibi faktörler de bu piyasaların gelişimini kısıtlamaktadır. Bu kısıtlamaları aşmak ve sukuk piyasalarının büyüme sürecini geliştirmek için İbn Haldun’un sekiz kategori içeren bir ekonomik modeli bu makalede önerilmiştir. Önerilen modelin yanında İbn Haldun birçok farklı ekonomik yapı tavsiye etmiştir
استحقاق المفلس للزكاة في ماليزيا = The eligibility of a bankruptcy to receive Zakat in Malaysia
No full textBankruptcy is one of the worst conditions that individuals may face. The Islamic law has alerted the laws of the debt and warned against leniency in making debts and urged its payment, and has put several methods for its payments, including from the share of the aṣnāf al-Ghārimīn, and the jurists have set the conditions and conditions for the entitlement of al-Ghārimīn, but the question remains about the issue of bankruptcy in Malaysia because there was no discussion in books Jurisprudence. Therefore, this research seeks to clarify the eligibility of a bankruptcy to receive zakāt, especially from the al-Ghārimīn category in Malaysia, this research also seeks to discover the ways in which the insolvency administration in Malaysia issues decisions on bankruptcy, and to search for the conditions for zakāt eligibility in Lembaga Zakāt Selangor (LZS), and through the inductive approach, the researcher collected information related to the subject, then the researcher worked on analyzing the information and data obtained. The researcher concluded a number of results, the most important of which are: al-Ghārimīn are Muslim debtors and deserve zakat to pay off their debts, the reasons for bankruptcy are among the most important factors in the eligibility of zakāt, the fact that the bankrupt is a deferred debt that makes it ineligible to take Zakāt
The Legality of Decision of Taking Fees upon Recharging Service Issued by the Central Bank of Indonesia in the Light of the Concept of Qabḍ in Islamic Jurisprudence: شرعية قرار أخذ رسوم عند إعادة الشحن الصادر من البنك المركزي الإندونيسي في ضوء مفهوم القبض في الفقه الإسلامي
No full textThis research aims to study the validity of the possession of electronic money by default based on the regulations issued by the Central Bank of Indonesia, as well as verifying the compatibility of the Indonesian law related to electronic money with the concept of “qabḍ” (possession) in Islamic jurisprudence. The premise of this is that some people do not see that it is permissible for the issuer to take the fees from the customer in return for the electronic money recharge service. This research relied on the inductive approach in collecting data from available sources, and the analytical approach in studying the represented data and the elements related to the subject. The researchers reached several results, the most prominent of which are: the Islamic jurisprudential adaptation chosen for electronic money is that it is a form of bank money. The jurisprudential adaptation of the ongoing contractual relationship in electronic money differs according to the types of electronic money. In unregistered electronic money, the jurisprudential adaptation of the contractual relationship between the customer and the issuer is the exchange contract. In registered electronic money, the Islamic jurisprudential adaptation of the contractual relationship between the customer and the issuer is the loan contract. One of the types of services that the issuer must provide to the customer when dealing with electronic money is the recharge service. It is possible to conclude that the Islamic jurisprudential adaptation in the relationship between the customer and the issuer when using this service is the lease contract. The “qabḍ” took place in this relationship because the customer is able to use this service, and in return for the “qabḍ” of this service, the customer is obliged to pay the fee to the issuer. Accordingly, the decision issued by the Central Bank of Indonesia regarding the legality of taking fees by the issuer in return for the recharge service for the customer does not contradict the concept of “qabḍ” in Islamic jurisprudence because the “qabḍ” has been achieved, and this requires payment of the fee or compensation in exchange of the received service
The Eligibility of a Bankrupt to Receive Zakāh in Malaysia
No full textBankruptcy is one of the worst conditions that individuals may face. Islamic law has informed the rules of the debt and warned against leniency in payment of debt and urged its payment, and has prescribed several methods for its payment, including the share of al-Ghārimīn. The jurists have set the parameters and conditions for the entitlement of al-Ghārimīn for zakāh. But the question remains about the issue of entitlement of a bankrupt to receive zakāh because there is no discussion on it in the books of jurisprudence. Therefore, this research intends to clarify the eligibility of a bankrupt to receive zakāh, especially from the al-Ghārimīn category. This research also intends to discover the ways in which the insolvency administration in Malaysia issues decisions on bankruptcy, and to search for the conditions for zakāh eligibility in Lembaga Zakat Selangor (LZS). Through the inductive approach, the researchers collected information related to the subject, and then they worked on analyzing the information and data obtained. The researchers concluded a number of results, the most important of which are: al-Ghārimūn are Muslim debtors and deserve zakāh to pay off their debts; the reasons for bankruptcy are among the most important factors for the eligibility of zakāh; and if the bankrupt has a deferred debt, it makes him ineligible to receive zakāh
Madhhabī Fanaticism and Its Impact on Society: A Study in Light of Islamic Jurisprudence: التعصب المذهبي وأثره في المجتمع: دراسة في ضوء الفقه الإسلامي
No full textThis study aims to explore the phenomenon of madhhabī fanaticism and its impact on the Muslim society by employing two methods: inductive and analysis. The inductive approach is used for data collection and the analytical approach is used for studying the available data. This study explains the definition of "madhhabī fanaticism," its forms, causes, rules in Islamic jurisprudence, and practical examples of the real impact of "madhhabī fanaticism" on the ordinary people's morality. This study has shown several results, and the most obvious results are: that madhhabī fanaticism causes many disputes and disunity among Muslims; indeed this situation gives ample opportunity for the enemies of Islam to distract and destroy the unity of Muslims. And, it is notable that "madhhabī fanaticism" is not only prohibited for ordinary people but for all classes of people because it is a form of rejection of the truth when there is a clear dalīl that has been explained. Madhhabī fanaticism will jeopardize everyone whether he is a Muslim scholar or one of the ordinary people. But fanaticism of a scholar can be more harmful than the fanaticism of laymen because ordinary people may have learnt or heard a mistake from a scholar, but they are unlikely to learn and hear how to correct that mistake properly resulting in misunderstanding among them. At the end, the researchers recommend that all scholars should try to rectify this problem using their knowledge of Sharī‛ah and providing continuous advice, explanation of the truth and correction of mistakes with wisdom and discretion. And for the learners, they should equip themselves with knowledge and effort for seeking it, so that "madhhabī fanaticism" would go away from them; and also all parents and teachers are encouraged to collaborate in giving Islamic education to their children from an early age which would save them from this disease in the future
