http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/issue/feed International Journal of Fiqh and Usul al-Fiqh Studies (IJFUS) 2019-01-14T01:13:26+00:00 Chief Editor (رئيس التحرير) ijfusjournal@iium.edu.my Open Journal Systems <p><em>An International Journal of Fiqh and Usul al-Fiqh Studies</em> (IJFUS) is a peer-reviewed bilingual (Arabic and English) scholarly online&nbsp; journal, published biannually in June and December by the Kulliyah of Islamic Revealed Knowledge and Human Sciences, International Islamic University Malaysia.</p> <p>IJFUS publishes original research articles on various topics related to <em>Fiqh</em> and <em>Usul</em> <em>al-Fiqh</em>. It seeks to enrich the discussions on<em> Fiqh</em> and its <em>Usul</em> by serving as a platform for fresh perspectives and insightful analyses on a wide range of jurisprudential issues.</p> http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/99 Front Pages 2019-01-14T01:05:11+00:00 Editor IJFUS ijfusjournal@iium.edu.my 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/88 The Impact of the Two Maxims of Istiḥālah and Istihlāk upon the Rulings on Food and Medicine: An Analytical Juristic Study 2019-01-14T01:05:41+00:00 Syed Muhammad Redzuan bin Syed Yusuf syedredzuan.alhabshi@gmail.com Arif Ali Arif arif.ali@iium.edu.my Luqman Zakariyah luqzak@iium.edu.my <p><em>This study focuses on the Islamic rulings regarding food and medicine from the perspective of two maxims, istiḥālah and istihlāk, with gelatine and alcohol as the case studies. The researchers applied the inductive method for examining fat</em><em>ā</em><em>w</em><em>ā</em><em> issued on new and latest food and medicine whose forbiddance is disputed and for investigating them from both perspectives of medicine and Islamic jurisprudence in order to make integration between them. Likewise, the researchers&nbsp; used the analytical approach in clarifying the reasons for variation between the scholars of Islamic jurisprudence regarding the types of prohibited substances in the latest food and medicine, while analysing and pondering upon them, and clarifying the regulations that confirm the objectives of the Sharī‘ah and maxims of Islamic jurisprudence. This study concludes with these findings: the maxims of istiḥālah and istihlāk are not achieved in the production of gelatine. As for alcohol, it is not the same as intoxicants, therefore their consumption is prohibited in both little amounts and large amounts. The researchers opine that the rulings they preferred may be overridden in cases of dire need based on the maxim of Islamic Jurisprudence: “dire need makes the prohibited permissible.”</em></p> <p><strong><em>Keywords: Islamic Rulings on Food, Istiḥālah, Istihlāk, Gelatine, Alcohol</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/89 The Author’s Rights: A Comparative Study Between Islamic Jurisprudence and World Trade Organization Agreements 2019-01-14T01:06:04+00:00 Abdel Aziz Shakir Hamdan al-Kubaysi a.hamdan@uaeu.ac.ae <p><em>The issue of copyright may have existed since the beginning of time in some other form or name. A person who keeps track of this issue will find it deeply rooted in the history of Islamic civilization. Although Muslims long ago did not use the term copyright, they were aware of the crux of this issue. Our forefathers, may Allah have mercy on them, knew many concepts related to intellectual property and intellectual production from an early time. They have set many rules and regulations governing this type of property to ensure the preservation of intellectual production and protection of the guidance of the book of Allah, and the teachings of His Messenger (peace be upon him). Through this study, the researcher wanted to highlight these concepts, rules and regulations related to intellectual property, especially in the field of author rights, and compare them with the WTO Agreements in this regard.</em></p> <p><strong><em>Keywords: Author’s Rights, Islamic Jurisprudence, World Trade Organization, Maxims</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/90 The Evolution of the Discipline of Maqāṣid al-Sharī'ah in Islamic History 2019-01-14T01:06:39+00:00 Hannan Sari hananejustice@gmail.com Mohammed Abullais al-Khayrabadi mabullais@hotmail.com <p><em>The discipline of Maqāṣid al-Sharī</em><em>'</em><em>ah is a body of knowledge that is both impactful and esteemed. It has existed in some shape or form since the time of the Prophet s.a.w. and his companions until the modern era. It ought to be said that this body of knowledge did not materialize at once. In fact, it has gone through various stages of evolution until it reached its current form as a distinct body of knowledge and turned into an academic discipline. Scholars started looking at this body of knowledge academically towards the beginning of the fourth century A. H. and beyond. Among the pioneers in this field were: Imam of al-</em> <em>Ḥaramayn al-Juwaynī in his book, al-Burhān fī Uṣūl al-Fiqh, then Imam al-Ghazālī in his book, al-Mustaṣfā fī Uṣūl al-Fiqh, then Imam Al-‘Iz bin ‘Abd al-Salām in his book, Qawā’id al-Aḥkām fī Maṣāliḥ al-Anām, and al-Shāṭibī in al-Muwāfaqāt, who is considered the reference in this discipline. Then came Ibn ‘Ashūr and his book, Maqāṣid al-Sharī</em><em>Ñ</em><em>ah al-Islāmiyyah; he is considered as the leader of this discipline in the modern age. In the context of the evolution and revival of modern Islamic thought and its major Islamic disciplines, there is increasing interest in the study of the higher objectives of Shar</em><em>ī</em><em>'</em><em>ah (Maq</em><em>āṣ</em><em>id al-Shar</em><em>ī</em><em>'</em><em>ah) because it represents the fundamental values of Islam and its basic doctrines and legislative principles. It comprises the basic ingredients of permanency, uniformity, and harmony of the revival of Islamic thought in its myriad issues and dimensions. The interest in this field continues to rise to the extent that you can coin the term Maqa</em><em>ṣ</em><em>idic Revival in the various Islamic disciplines and thought.</em></p> <p><strong><em>Keywords: Maqāṣid al-SharīÑah, Islamic History, Evolution of Knowledge, Islamic Thought</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/91 The Rule of Sex Change: An Evaluative Study in Light of the Maqāṣid al-Sharī’ah 2019-01-14T01:07:06+00:00 Farhan bin Hasmady arzt.farhan@gmail.com Mustafa Mat Jubri Shamsuddin mussham@iium.edu.my <p><em>Sex reassignment or sex change is a new and strange phenomenon unknown to our predecessors. Modern medical advances have facilitated the process and technological advances in communication have helped spread this phenomenon among Muslims of today. Muslim scholars rose to the occasion and clarified the legitimate Islamic Fiqh position towards sex reassignment. However, some of those affiliated with Fiqh and Sharī’ah followed a course other than that of the majority credible and authoritative Muslim jurists in the Islamic world. Thus this paper aims to contribute to the correct legal position towards sex reassignment surgery by highlighting the proofs and arguments of the majority of the jurists (Fuqahā), which are based on the Holy Qur’an and Sunnah according to the understanding of the credible authoritative scholars of past and present, and also on the sound logical evidences and the Maqāṣid al-Sharī’ah. This paper only deals with sex reassignment motivated by the inner-sense of belonging to the opposite sex and does not cover sex reassignment done based on other reasons be it valid or invalid.</em></p> <p><strong><em>Keywords: Sex Reassignment, Gender, Transsexualism, Islamic Jurisprudence, Maqāṣid al-Sharī’ah</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/92 The Issue of Woman’s Work: A Maqasidic Analysis on the Backgrounds and Socio-Economic Implications 2019-01-14T01:07:43+00:00 Ghalia Bouhedda bouhedda@iium.edu.my Abu Nasr Muhammad Chekkar nacer37@gmail.com <p><em>Discussing the issue of women's work from the Islamic point of view requires a holistic approach that examines the subject with all the different factors and influences of life. This is a methodical approach that Mujtahid</em><em>ū</em><em>n call “Ta</em><em>ḥ</em><em>q</em><em>ī</em><em>q al-Man</em><em>āṭ</em><em> al-‘</em><em>Ā</em><em>mm” for Islamic researches. It extends to a wider circle related to the nature of social life and the pattern of family relations. It is linked to political and economic systems and the perception of women and their function and location in society. This research contributes to this debatable issue, trying to dismantle the ideological backgrounds surrounding this issue and to examine the economic and political motives behind it. Then, it follows up the implications that are socially and economically derived by evoking the reality of global experiences, in order to come up with a more comprehensive and balanced vision in Ta</em><em>ḥ</em><em>q</em><em>ī</em><em>q al-Man</em><em>āṭ</em><em> in its Maqasidic context which controls its view and rulings.</em></p> <p><strong><em>Keywords: Woman’s Work, Maqasid al-Shariah, Implications, Society, Economy</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/96 The Boundaries of a Woman’s Obedience to Her Husband in Islamic Jurisprudence: A Case Study of Juristic Differences between the Spouses 2019-01-14T01:10:05+00:00 Muhammad Ibrahim al-Abbady Dr.alabbady@gmail.com <p><em>This study aims to highlight the </em><em>boundaries of a woman’s obedience to her husband in Islamic jurisprudence and discuss the method that should be followed by the</em><em> spouses between whom there are juristic differences on certain issues, so that the juristic differences may not lead to marital disputes. The research problem is that Allah Almighty has made it an obligation upon a woman to obey her husband. However, He has prohibited a man or a woman in general to blindly obey his fellow man if he disobeys the commands of Allah. Therefore, what is the Islamic juristic ruling pertaining to a woman who is asked by her husband to carry out an order she believes is not juristically allowed, even if it is allowed in the eyes of her husband?&nbsp; Does she, in this case, comply with the will and order of her husband or follow what she believes to be juristically right? Does this affect the type and nature of the case? This research uses the inductive approach in gathering different juristic statements and cases, and an analytical approach in investigating those statements and cases. It uses critical approach in selecting the statements that are preponderant. Finally, the research concludes with several findings: man has no right to oblige his wife to comply with an order which is not recognized by the Shar</em><em>ī</em><em>Ñ</em><em>ah especially if complying with it will cause her harm; a woman must obey her husband in carrying out a command that is obligatory upon her by the Shar</em><em>ī</em><em>Ñ</em><em>ah and upright customs.</em></p> <p><strong><em>Keywords: Juristic Differences, Wife’s Obedience, Custom, Personal Issues, Common Issues Between Spouses</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/97 The Will for Heirs: A Juristic Analytical Study 2019-01-14T01:11:47+00:00 Fatimah Karim tmah89@yahoo.com Abdul Bari Awang abdbari@iium.edu.my Mohamad Sabri Zakaria sabriz@iium.edu.my <p><em>This research aims to study the topic of “The Will for Heirs: A Juristic Analytical Study.” It deals with the definitions of will or testament and heirs from the perspective of Islamic jurisprudence. It discusses the views of jurists regarding the ruling of will for heirs by discussing proofs of jurists on this issue in the light of Islamic law of inheritance. This research discovers that the Muslim jurists differed on the law of will for heirs according to three schools of thought: according to Shī’ah Imāmiyyah and some supporters of Zaydiyyah, the will for heirs is permissible in one-third whether approved by the other heirs or not. This view differs from the majority of jurists who invalidate the will for heirs except by the permission of the other heirs because their permission is like a forfeiture of their right. Others, such as </em><em>Ẓ</em><em>āhiriyyah, opposed the implementation of will for heirs. They argued that the will, will cause dissatisfaction in other heirs or inheritors. On the other hand, the will for heirs is useful and beneficial for some of the needy heirs. The researchers rely on the inductive and analytical methods. One of the important findings of this research is that, relying on the majority opinion of jurists, the law of will for heirs is valid only with the permission of the rest of the heirs after the death of the testator; this is the best opinion based on the strength of the evidence and their keenness on the unity of the heirs of the deceased.</em></p> <p><strong><em>Keywords: Will, Heir, Juristic Study, Permission</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/98 Floating Charge Debenture as Security from Shari'ah Perspective 2019-01-14T01:12:20+00:00 Syairazi Muhammad Husni Mohd Sharoni syaihusni@gmail.com Rusni Hassan hrusni@iium.edu.my <p><em>Floating charge debenture is one type of security adopted by the Islamic Banks in Malaysia for non-individual customers. For Islamic banks, it is crucial to ensure that all of their banking products and services are Shar</em><em>i'</em><em>ah compliant. However, there is no specific ruling from Bank Negara Malaysia on Shar</em><em>i'</em><em>ah compliance status of floating charge debenture. Therefore, the purpose of this paper is to determine the soundness of floating charge debenture as security by Islamic banks in Malaysia from the Shar</em><em>i'</em><em>ah perspective. This paper adopted a qualitative method that referred to primary and secondary Shar</em><em>i'</em><em>ah sources, as well as other related sources such as guidelines of Bank Negara Malaysia and Accounting and Auditing Organization for Islamic Financial Institution. The paper found that it is permissible for an Islamic bank to accept floating charge debenture from non-individual customers as security with certain conditions. This paper </em><em>suggests that the Bank Negara Malaysia </em><em>should issue certain resolution related to this issue to arrange related applications in Islamic banks in Malaysia. </em></p> <p><strong><em>Keywords: Debenture, Floating Charge, Security, Shari'ah Compliance, Islamic Bank</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/102 The Custom of Distant-Marriage: A Juristic Analytical Study 2019-01-14T01:12:59+00:00 Halimo Mahmud Osman alosmania@gmail.com Mustafa Mat Jubri Shamsuddin mussham@iium.edu.my <p><em>This research presents a marriage custom called the custom of "</em><em>Distant-Marriage,</em><em>" where the guardian is intentionally excluded during the marriage contract without any necessary reason that called for it. The researchers discuss about legal marriage and its conditions which include (according to the sound view of Muslim jurists,) the consent of the guardian. The researchers also mention the different opinions of jurists concerning this guardianship during the marriage contract,</em> <em>followed by the evidence of each School of Islamic Law and then state the fairest opinion on the matter. In addition, the researchers mention the pillars of marriage, its rulings, and its purposes because of which it has been legislated.&nbsp; All of this is mentioned as an introduction to the main subject of the research. Then the researchers move to talk about the crux of the subject which is "</em><em>Distant-Marriage</em><em>" with its definition, and the reasons that facilitated its spread among Muslims. The researchers then speak about the effects and damages caused by “</em><em>Distant-Marriage</em><em>,” including the large number of divorces, the displacement or homelessness of children and the separation between relatives and family members. Finally, the researchers talk about the position of Sh</em><em>a</em><em>fi</em><em>'</em><em>ī</em><em> School of Law on “Distant-Marriage” indicating that this marriage is not related to this School of Law. Therefore, the researchers state that “Distant-Marriage” violates the method of Islamic legal marriage, and that Muslims must avoid it.</em></p> <p><strong><em>Keywords: Legal Marriage, Distant-Marriage, Guardianship in the Marriage Contract, Juristic Rulings, Madhahib</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## http://journals.iium.edu.my/al-fiqh/index.php/al-fiqh/article/view/103 Guidelines for the Application of Purchase (Bay') and Loan (Salaf) in the Bank Letter of Guarantee 2019-01-14T01:13:26+00:00 Mohd Muizz Abdullah muizzziela8990@gmail.com Abdul Bari Awang abdbari@iium.edu.my <p><em>Currently, rapid development in the Islamic finance sector is aimed to fulfill people’s needs. Because of that, Islamic banks need to produce new products and services with combined contracts which do not confine to a single contract. So, this research is made to identify the reasons of prohibition of the combination of purchase contract (bay</em><em>'</em><em>) and loan contract (salaf) mentioned in a </em><em>ḥ</em><em>adt</em><em>ī</em><em>h. One of these reasons is the combination of two contracts in a single transaction that has been abundantly discussed by the scholars in the past and present. A present example of the combined contracts produced by the newly created financial transactions is “Letter of Guarantee,” where the researchers have found that this contract has been formed by combining two contracts in a single transaction, i.e., bay</em><em>'</em><em> and salaf. It is, therefore, necessary to understand the mentioned </em><em>ḥ</em><em>ad</em><em>ī</em><em>th profoundly before its application in the Islamic banks so that it does not contradict the holy Shar</em><em>ī</em><em>'</em><em>ah. The researchers use the data collection method for collecting materials related to the subject of the study. They also use the analytical method to analyze the a</em><em>ḥā</em><em>d</em><em>ī</em><em>th related to the topic, and then investigate the legitimacy of the application of bay</em><em>'</em><em> and salaf in the “Letter of Guarantee,” and its juristic adaptation (taky</em><em>ī</em><em>f fiqh</em><em>ī</em><em>). An important finding of this research is that the application of bay'</em> <em>and salaf in the “Letter of Guarantee” is permitted, as long as the higher objectives of Shar</em><em>ī</em><em>Ñ</em><em>ah are considered in it, and there is no involvement with the prohibited things.</em></p> <p><strong><em>Keywords: Purchase and Loan, Letter of Guarantee, Client, Beneficiary, Guarantor</em></strong></p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement##