International Journal of Fiqh and Usul al-Fiqh Studies

Marital Discord Resolution in AbdulHamid AbuSulayman’s Viewpoint: A Maqāṣidic Analysis

Belayet Hossen — 2024-01-31

The research aims to illustrate the viewpoints of AbdulHamid AbuSulayman on marital discord’s resolution, which he corresponded in one of his pivotal books entitled “Marital Discord: Recapturing Human Dignity through the Higher Objectives of Islamic Law”. He profoundly noticed a long lasting and historical debate among scholars of Islam regarding the chastisement of a wife and its intensity whether a mark of beating could be seen on her body, or a slight beating with a light stuff like a siwāk (toothbrush) could be enough to chastise. AbuSulayman entirely disagreed with such perception of beating and claimed that where the foundation of a family in Islam is based on affection, compassion, cooperation, and benevolence, how coercion, repression, or abuse should have the space there? He also argued that how an adult person can beat another adult while each spouse has the right to leave the family and terminate the marital bond when it becomes detrimental? Conversely, scholars like Ibn Abi Hatim, Ibn Jarir and other classical scholars of four madhāhib endorsed the husband’s role to discipline his wife by slight beating. Modern scholars like Muḥammad ʽAbduh, Rashīd Riḍā, Sayyid Quṭb and Yūsuf al-Qaradāwī also opined the same. To resolve disputes between spouses, AbuSulayman proposed some steps that could be taken by a husband to normalize the relationship avoiding any chastisement. The study followed a qualitative methodology, where the researchers extensively studied the aforementioned book and other related sources and analysed the author’s viewpoints and that of other scholars from Maqāṣid al-Sharīʽah perspective.

Editorial

IJFUS Editor — 2024-01-31

The Legal Provisions and Judicial Rulings of Will for Heirs’ Cases in Malaysia's Sharīʽah High Courts

Fatimah Karim — 2024-01-31

This 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.

Bay’ al-Istijrār in Letter of Credit in the Light of the Decision of the Central Bank of Malaysia: An Applied Analytical Study

Abdul Hakim Suhaimi — 2024-01-31

This research aims to study the application of Bay' al-Istijrār in contemporary transactions, particularly in the context of the letter of credit. With the widespread use of contemporary banking transactions adopting various forms of Bay' al-Istijrār, it becomes crucial to examine these forms to ensure their compliance with the pillars and conditions of permissible transactions. Despite the Central Bank of Malaysia's decision to implement Bay' al-Istijrār in the letter of credit, a comprehensive study focusing on this application and its alignment with the pillars and conditions of Bay' al-Istijrār by jurists was not found by the researchers. To address this gap, the researchers employed both the inductive and analytical approaches. The research yielded significant findings, including that the Bay' al-Istijrār has different forms, some of which are permissible, and some others are forbidden; and the letter of credit based on the sale of rent, as stated by some jurists, is permissible.

Synonymity According to Uṣūlī Scholars and Its Jurisprudential Effects: A Study of Its Application and Origination

Muhammad Said Almujahed — 2024-01-31

The research aims to identify the uṣūlī meaning of synonymity, so it provides the origin of its maxims, then brings together the branches of jurisprudence that arose based on those maxims. The issue of synonymity is one of the uṣūlī linguistic issues, which has jurisprudential branches, and from here lies the problem of the research. It is summarized into identifying the meaning of synonymity from uṣūlī and juristic perspectives. The research came to answer the following questions: what are the linguistic and terminological meanings of synonymity? What are the opinions of linguists and uṣūlī scholars regarding its occurrence in the language, the Qur’ān, the Sunnah, and the jurisprudential industry? What are its causes and types? What are the uṣūlī maxims of synonymity and what are their practical implications? The research used inductive, analytical and descriptive approaches. It reached several conclusions, the most important of them are: that linguistically tarāduf (synonymity) is: succession of one thing, and murādif (synonym) is successive; as an uṣūlī term, it is the indication (dalālah) of two or more single words to one meaning according to one consideration; and the preferable view is that synonymity is possible and it occurs in the Arabic language, while it did not occur in the Holy Qur’ān, unlike the Sunnah of the Prophet and the jurisprudential industry. There are many reasons for synonymity. One of them is the multiplicity of Arabic dialects, if it was created by two originators. However, if it was created by one originator, then it has other reasons such as phonetic development, misrepresentation, distortion, and others. And it (synonymity) occurs in the language, law, and customs. The scholars have agreed that each of the two synonymous words takes the place of the other. In the case of synonymous combinations, the preferable view is that it also occurs (in Arabic language), such as nikāḥ and zawāj indicate a contract of permissibility (ibāḥah) of a woman for a man; and such as bayʽ, tamlīk and jaʽl, which indicate the transfer of ownership of a thing to another. One of the uṣūlī maxims of synonymity (tarāduf) is that it is not permissible to use the synonymous word for the opening takbīr of ṣalāh while being able to pronounce Allāh Akbar, whether in Arabic or other languages. However, in case of inability, then it is permissible. As for the rest of the prayer remembrances (adhkār) other than the opening takbīr, there has been a disagreement among the jurists regarding them. According to some of them, it is permissible, and according to others, there are further conditions and details (that must be fulfilled). And finally, the synonymity (tarāduf) is contrary to the basic rule (aṣl).

Concession and Following the Truth in the Fatwā of ʿAllāmah al-Qaraḍāwī: A Juristic Uṣūlī Study Compared to the Opinions of Other Scholars

Ahmed Ali Elhassi — 2024-01-31

This research aimed to explain the way of concession (tarakhkhuṣ) in uṣūlī ijtihād, and the extent of its conformity with the facilitation approach for which the scholar of the present era and jurist of the time, Imam al-Qaraḍāwī, is famous. The study dealt with explaining the legal foundations of the way of concession, its definition, ruling, regulations, and then explaining the facilitation approach according to Shaykh al-Qaraḍāwī, and mentioned a number of his fatāwā and the fatāwā of some of his contemporaries regarding this, then studied and analyzed them. The study attempted to answer the problem of expanding the way of facilitation and concession in fatāwā of Imam al-Qaraḍāwī, and whether it is consistent with the correct uṣūlī approach that is based on the legal text and the evidence of ijtihād approved by the scholars, who were the imams of Islamic jurisprudence and uṣūl. Then, is this facilitative approach a method that distinguished al-Qaraḍāwī from other muftīs of his time? Or did others agree with him, and did they follow the same approach in their answers and fatāwā? The study followed the analytical and comparative approaches and concluded that the approach of facilitation in fatwā is the authentic approach of Sharīʽah, followed by the Companions - may God be pleased with them - and the imams of jurists and uṣūlī scholars who came after them, in accordance with the legal regulations that they stipulated in their books and writings. Imam al-Qaraḍāwī followed this correct approach, and others followed him in the same way, and we see this clearly when we follow their statements and fatāwā even if they did not declare support for this approach, but rather they increased their slander against those who followed and supported it. This is the essence of the dispute between them and al-Qaraḍāwī, as he declared this and compiled books to support it and provide regulations for it. He believed that this is the true approach called for by the Qur’ān and demonstrated by the Sunnah of the Prophet upon him be the best prayers and complete peace.

Juridical Approaches in the Opinions of Proponents and Opponents of Marriage of Minors

Qamzah Salemr Almarri — 2024-01-31

The aim of this research is to present the jurisprudential opinions concerning the marriage of minors, both those in favor and those against, to facilitate the understanding of the ruling sought by students of knowledge and others in this matter and to explain the benefits and drawbacks of the marriage of minors. My reason for choosing this topic is the diversity of jurisprudential opinions surrounding the marriage of minors and the desire to clarify the issue of the marriage of minors from a jurisprudential perspective to serve Islamic jurisprudential heritage and address the lack of knowledge among some Muslims regarding such rulings. The importance of this research lies in its role as a jurisprudential Islamic study aimed at understanding the jurisprudential rulings related to the marriage of minors. The research plan is organized into an introduction and two sections. The first section “the marriage of minor girls, its concept and types” is divided into three sub-sections. The first sub-section is on what is meant by the marriage of minor girls. The second sub-section is on the objectives of marriage. The third sub-section is on the types of minors in Islamic jurisprudence. The second section “Jurisprudential approaches to the marriage of minor girls” is also divided into three sub-sections. The first sub-section is on the view of those who permit it, their evidences and benefits of this type of marriage. The second sub-section is on the position of those who oppose it, their evidences and drawbacks of this marriage. The third sub-section is about the preference between the opinion of the majority of scholars and their opponents. The study concluded with a number of results, including: citing evidence from the Qur’ān and Sunnah, the majority of scholars are of the opinion that the marriage of young girls (underage girls) is permissible. Among the benefits of this permissibility is that not specifying an age for marriage sometimes serves the interest (maṣlaḥah). In some cases, early marriage of a boy and a girl who possess somewhat mental and psychological abilities beyond their age has a positive effect that lies in assuming responsibility. According to the view of the opponents, among the legal disadvantages are: the purpose of marriage, of course, is to satisfy one’s desire, and there is no desire for children, and according to the Sharīʽah, procreation and childhood are incompatible with them. Finally, consideration must be given to setting specific goals for this marriage and not generalizing the ruling on it and setting legal regulations for it that estimate the need motivating this marriage.

Means of Modern Criminal Evidence for Testimony: A Comparative Study between Sunnah and Libyan Law

Amer Ali Mohammad Aljadi — 2024-01-31

The 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.

The New Issues of Financial Transactions from the Chapter of Makhārij and Ḥiyal of the Books of Jurists

Mohamad Damir Khaliqyar — 2024-01-31

Nawāzil Fiqhiyyah refer to those cases and events that require a Sharīʽah provision. In this sense, it includes all latest events and cases that require a new fatwā to clarify them from the Sharīʽah perspective regardless of whether these events are frequent or rare, old or new. Therefore, the jurisprudence of nawāzil is considered one of the most important branches of Islamic jurisprudence for its great role in explaining the provisions of Islamic Sharīʽah related to the reality of life in its all fields. The methods followed are the qualitative and analytical methods, as the researchers in this article used books, scientific journals, and official articles, and then analyzed them qualitatively. The research reached several results, the most important of which are: the word “nāzilah” is the synonym of “mustajaddah” (new issues). And that the most classical Sharīʽah jurists used the word “nawāzil” to express the events and calamities that befall people such as famine, epidemics, calamities, drought and scarcity. They mentioned it in the sections (chapters) of questions and answers on issues related to various aspects of the lives of individuals and society (transactions, conflicts and customs). Then they mentioned the answers of the jurists to these questions according to the texts of Sharīʽah and the deduction (ijtihād) of the classical jurists in their interpretation, and the analogy of the later jurists on those deductions. Sometimes the answers may be based on jurisprudential tricks (doctrinal) and legal exits. It is one of the important topics needed by the jurist, the muftī, the researcher, and the judge to research it and to find solutions to it, which are called contemporary issues and jurisprudential events.