International Journal of Fiqh and Usul al-Fiqh Studies

The Renewal of Islamic Jurisprudence Between Originality and Modernity: A Comparative Study

Awat Mohamed Agha Baba — 2023-01-30

This 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).

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

Raushan Fikri Adam — 2023-01-30

This 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 Principle of Restricting the Ruler’s Authority in Islamic Jurisprudence: Its Foundations, Nature and Objectives

Muhammad Najib Alsayed — 2023-01-30

The principle of restricting State power is one of the most important constitutional principles in the modern state system. This study aims to show the foundations on which this principle is based, the types of restrictions, and their objectives, all from the point of view of Islamic jurisprudence. This research followed the descriptive approach by tracking the texts of jurists related to the subject and analyzing them in order to reach the desired results. The research concluded that the principle of restricting the ruler’s authority is based on three foundations, i.e., Allah has the absolute authority above everyone else, the authority originally belongs to the ummah, and that there is a contractual obligation between the ummah and the ruler. Also, this research concluded that the restrictions on the authority of a ruler has different forms: legal and moral restrictions, contractual restrictions, and restrictions based on the benefit of ummah. Likewise, the research concluded that the effectiveness of this principle is in the religious and worldly responsibility of the ruler and in the right of the ummah to monitor the ruler and to hold him accountable through the Shūrā council. The purpose of considering this principle is to stay under the sovereignty of Allah Almighty first, as He is the absolute ruler, and then to respect the ummah as they have the rightful authority essentially, and the ruler is only a representative of it.

Weakness and Disruption of Waqf, Their Causes and Solutions: A Case Study of Libyan Awqāf

Abdul Aziz Muhammad Alshibany — 2023-01-30

This paper sheds light on weakness and disruption that occur in the chosen case study of “Libyan Awqāf”. The role of awqāf in the country is frail and unnoticeable for it does not provide supposed outcomes. The outcomes are not in parallel with the abundance of distinguished awqāf of high-income generating assets in Libya. Hereby, this paper aims to ascertain factors leading to the flaws in its performance, and thus identifies suitable solutions to remedy the problem and halt its deterioration. For that matter, this study employs the inductive approach as it initially collects data on issues, reports, previous researches and fatwās regarding the topic. Then the data are analyzed to ascertain the causes. Thus, this study manages to provide recommended solutions which are: a review for rental contracts, good use of the income in resuscitating the assets and employing cutting-edge investments, effective staff capacity, operative quality control, independence in expense management instead of the dependence on the government budget, doing efforts for actual aim of managing awqāf and their development, and embracing a principle of sincerity and transparency. These recommendations are made to gain people’s trust and assure the achievement of its objectives.

Literalism Versus Rationalism In The House of Islam: A Case Study of Islamic Law of Succession

Nafiu Ahmed Arikewuyo — 2023-01-30

The conspicuous difference that exists among Muslim jurists from the formative stage until the contemporary time is not disconnected from the different basic approaches to the interpretation of religious texts, namely, the textualist and rationalist. This phenomenon has shaped the scholastic contention in virtually all fiqh discourses. Against this background, this article explores the surface of the aforementioned trends in selected issues relating to the Islamic Law of Succession. The research adopts historical and analytical approaches. While the historical approach assists in tracing the development of succession law in Islam, the analytical approach helps in identifying the areas characterized by literalist and rationalist trends and which one between the two is juristically given prominence. The study discovered that in most of the sampled issues, the rationalist approach triumphed over the literalist. It also detected that Muslims across the globe have maintained-as far as inheritance is concerned- the implementation of rationalist-based verdicts.

Sayyid Mawdudi’s Tafsir and Modern Challenges

Noor Mohammad Osmani — 2023-01-30

Sayyid Abū al-Aʿlā Mawdūdī (1903-1979) lived at a time when Islam was attacked from many corners of the world, from Western scholars, orientalists, modern scholars, Muslim apologists, anti-Ḥadīth movement and so on. The Western scholars do not regard the Qur’ān to be divine words. To them, Muhammad, peace be upon him (PBUH), had just copied the Qur’ān from biblical texts. They only regard the Bible to be the divine words. Some modern scholars submitted to the limited ability of rationality and rejected many Qur’ānic issues which are based on supernatural sources and the miracles of the Prophet. Anti-Ḥadīth scholars rejected the authenticity and the validity of the Prophetic traditions. To them, only Qur’ān is considered as the primary source of Islam and nothing else. Sayyid Mawdūdī dealt with all these challenges strongly and many other anti-Islamic and anti-Qur’ānic forces. This study follows textual analysis based on the Qur’ān, and the Tafhīm al-Qur’ān, the famous tafsīr of Mawdūdī and his other related writings. The study concluded that a reader should not get biased by preconceived notions while reading the Qur’ān. Rather he should keep his heart and mind open in dealing with the Qur’ānic issues and principles. It will open the doors of divine guidance for all sound-minded people.

Ṣadaqah (Charity) Attitudes of Muslims During COVID-19 Pandemic Lockdown: An Interpretative Phenomenology

Saheed Abdullahi Busari — 2023-01-30

The COVID-19 pandemic triggered global disruption, with many casualties recorded across different socio-economic groups. The surge seems to have affected vulnerable people more with the closure of most businesses and socio-economic activities. Despite significant government efforts to maintain lockdown order, vulnerable people from the B-40 community appear to have found it challenging to comply because of their inability to cater to their basic needs. The majority of the B-40 community with livelihood activities that require regular physical presence have difficulties accessing work and stores. Despite the government and non-governmental intervention packages for the vulnerable people, certain individuals have also volunteered in charity donations and distribution of basic socio-economic needs and health relief packages during the lockdown, but little is known about the Ṣadaqah attitude of Malaysians during the lockdown. This study explores the Ṣadaqah (charity) attitudes of Muslims during the COVID-19 pandemic lockdown to cater to the basic needs of the vulnerable members of society. This study employs the interpretative phenomenology approach of the qualitative method to analyze the semi-structured interview data. This study found that despite the anecdotal evidence suggesting that many people may be discouraged from giving Ṣadaqah due to socio-economic challenges during the COVID-19 lockdown, religiosity and psychological motivations have propelled many Ṣadaqah givers towards alleviating the socio-economic challenges of the vulnerable people. The analysis shows that the challenges of limited income and restricted socio-economic activities do not prevent some Malaysians from donating Ṣadaqah during the pandemic lockdown. The study recommends overarching government policy for an effective and transparent standard operation of the Ṣadaqah activities during emergencies.

Application of Ḥiyal (Legal Devices (LD)) in Murābaḥāh Transaction and Its Sharīʿah Perspective

Mohamad Sabri Zakaria — 2023-01-30

At present, Murābaḥāh is the most widely used mode for investments among financial institutions worldwide. Similarly, this mode has been generally applied in Islamic Financial Institutions (IFIs) in Sri Lanka. However, some scholars said that the contemporary Murābaḥāh practices are not Islamic because it relies heavily on the element of Ḥiyal (legal devices). Thus, this investigation explores the doctrine of legal devices (LD) in classical Islamic jurisprudence and its application in modern Islamic finance. Legal devices (LD) are normally used for some modifications which led to the reasons for the criticism. Hence, the validity of these LDs is analyzed through classical and modern literature. This study found that using LD alone does not invalidate a contract. In addition, there are conditions and restrictions that should be applied on the use of LD. This research utilizes a doctrinal analysis, which involves both primary and secondary sources of information, such as statutes, practices, and reports. This study recommends the spheres of acceptable LD and suggests that the innovations should only be attempted within these spheres. Also, it suggests that in emerging financial products, Maṣlaḥah should be given major consideration; otherwise, the adoption of Islamic finance in non-Muslim countries such as Sri Lanka will be a challenge.

Editorial

IJFUS Editor — 2023-01-30