International Journal of Fiqh and Usul al-Fiqh Studies

Weak Opinions in Worship from the Book of al-Ghāyah Wa al-Taqrīb: A Case Study of the Chapters of Purity and Prayer

Abdul Hakim Suhaimi — 2023-07-31

This research aims to study the weak opinions in the chapters of purity and prayer from Matn al-Ghāyah wa al-Taqrīb of Imam Abu Shujā’ al-Aṣfahānī in the light of the reliable opinions in the Shafīʽite School. This study will deal with the analysis of these opinions that the author chose for his book and the commentaries from later Shafīʽite scholars in the chapters of purity and prayer. What indicates the importance of this topic is that this book has become famous and spread in front of the Shafīʽite students, but they do not know the existence of these weak opinions - which were stipulated by the later Shafīʽite scholars – and also they believe that these opinions do not exist at all. This research will help them to understand the existence of these opinions. In this research, the researchers have followed three main approaches, namely: the inductive approach, the analytical approach, and the comparative approach. The study reached important results, including that the Matn al-Ghāyah wa al-Taqrīb, with its majesty and fame, was not free from weak opinions, and that there is no text written before al-Nawawī and al-Rāfi‘ī except that it contains weak opinions; and finally, the reliable opinions in the Shafīʽite school are what have been decided by the later Shafīʽite scholars.

Transfer of Guardian’s Authority of Marriage to the Hand of the Judge: A Jurisprudential Field Study in the Marriage of Some Malaysians in Southern Thailand

Rushdy Thaokloy — 2023-07-31

The study aims to discuss the topic of " Transfer of guardian’s authority of marriage to the hand of the judge: a jurisprudential field study in the marriage of some Malaysians in southern Thailand." This is due to a trend among Malaysian Muslims to marry by transferring the guardianship to the Judge as they travel outside the country with the intention of transferring the right of guardianship of marriage from their guardians to the Judge and seek his services in concluding the marriage contract. This marriage, in which the guardian is purposefully absent, violates the right of the guardian of lineage to give his ward in marriage. It also violates what the majority of the scholars from the past and present held, that the guardian is a requirement for the validity of a marriage. Southern Thailand is considered one of the most desirable destinations and one of the primary options for many Malaysians who want to marry in this manner. Therefore, the authors decided to study the ruling about the marriage of Malaysians with the intention of abandoning the right of the guardian of lineage to give his ward in marriage and transferring it to the ruler in southern Thailand. The authors employed inductive and analytical approaches. The authors carried out a field study by conducting personal interviews to learn about the opinions of some scholars, judges, lawyers, muftis, and academic experts from the relevant area. The authors have divided the research topic into two primary components; the first part highlights the concept of transfer of marriage guardianship from an Islamic juristic perspective; while the second part investigates the reasons that contribute to the spread of this ugly phenomenon in Malaysian society and proposes some solutions to address this issue. One of the most important findings of this study is that this phenomenon is one of the factors causing the destruction of family relationships in particular, and the moral value system of society in general.

Maʾālāt (Consequences) and Their Uṣūlī Maxims: A Juristic Applied Study

Hassan Suleiman — 2023-07-31

Since the entity of Islamic Sharīʽah is full of wisdom and goodness, it is pertinent for Muslims to contemplate their future, after learning from the past experiences and the knowledge of the present. By looking ahead, and at its complexity and preparing for it with the required sciences and arts, a better society can be ensured. Hence the scholars gave importance to the jurisprudence of ma’ālāt (consequences), their uṣūlī maxims and applications in various fields of Islamic jurisprudence. This study aims to employ our Islamic knowledge of jurisprudence and its principles, maqāṣid, as well as intellectual thought in extracting the role of heritage, extrapolating the established way of Allah and studying the reality carefully, that will enable the contemplating of a better future for the Islamic nation that will lead to achieving development and prosperity. Therefore, the problem of research lies in the difficulty to use the uṣūlī maxims and rules related to the jurisprudence of the future regarding the new juristic developments in different fields of Islamic law and contemporary issues. In order to complete the research, the researchers used the inductive analytical method by extrapolating the established Sharīʽah texts to anticipate and consider the role of ma’ālāt and then analyze those texts to infer appropriate judgments based on facts. Among the major findings of the research were: first, Islam prepared man to look to the future and free him from the obstacles of superstition, pessimism, volatility and astrology, and he should not despair, and surrender; rather he should struggle for, and stand by the truth. Secondly, the maxims of maʾālāt are concerned with knowing the legitimate provisions concerning the future and the possible actions of the mukallafūn (legally responsible people) based on past experience, understanding the reality and looking ahead within the possible human ability. Thirdly, the Qur’ān was concerned with establishing natural and societal ways of Allah based on contemplating the future, the same way it paid attention to the present by linking it with the past so that the Muslim can be on a sound foundation regarding his future.

The Principle of Considering the Consequences of Actions in the Sharīʽah Standard for Tawarruq Issued by the AAOIFI

Zakaria Sherif — 2023-07-31

The research paper aims to study the principle of considering the consequences of actions in the Sharīʽah standard for tawarruq issued by the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI). The problem of the paper lies in the extent to which the standard of tawarruq considers the consequences of actions in establishing the legal rulings mentioned in it, and how consistent they are with the consideration of consequences in its rules, regulations, areas, and mechanisms as established by jurists. It is known that the permissibility of various aspects of tawarruq is still a subject of disagreement among scholars, at institutional and individual levels. This study employs inductive and analytical methods as it finds out first the issues and rulings related to the standard of tawarruq which are based on consideration of consequences, then it analyses and evaluates them according to legal maxims on which they are established like sadd al-dharīʽah and ḥiyal and similar maxims which are related to ijtihād. The researchers will also explain and elaborate on rulings of the issues which are based on the principle of consideration of consequences of actions, analyzing and evaluating the ways in which it is used to formulate rulings on issues related to tawarruq. This research is significant as it will help financial institutions on one side, and will contribute on the other side in evaluating, improving, and renewing Islamic financial products by relooking at it at the research level. The researchers found that the standard of tawarruq has been complied with the principle of consideration of consequences and its regulations and maxims in inferring Sharīʽah rulings from it, and that is through formulating regulations and conditions which work to prevent all the means of circumvention and similar forms which are surrounded by doubt of ribā (interest). This proves the importance of this principle in the applied ijtihād and what is related to possibilities and cautions in finance. It seems that actualization of this principle in contemporary Islamic finance is demanded more than any other principle as it is related to financial rights of people.

Ḥīlah of Tawarruq: A Fundamental Analysis of Its Adaptation in Islamic Financial Services

Nasrun Mohamad Ghazali — 2023-07-31

This paper aims to critically review the application of tawarruq in Islamic financial services. On one hand, it is proclaimed as a Sharīʽah-compliant mode, while on the other hand, it has also been deemed non-compliant. In terms of the aspect of ḥīlah, this review intends to examine the basic mechanism of financial tawarruq and compare it with ʽīnah and ribā jāhiliyyah arrangements in order to outline the borderline of permissibility and prohibition. This paper applies the doctrinal methodology specified in Sharīʽah law, with cross reference to the contemporary Sharīʽah resolutions; whereby the observations, documents and records will be comparatively reviewed for establishing a critical evaluation. The review identifies areas that require further clarification regarding the adaptation of tawarruq into the modern financial system. The results indicate that the tawarruq mechanism differs slightly from ʽīnah, which possess the most similarity with the ribā jāhiliyyah attributes. In certain aspects, tawarruq could be considered a permissible ḥīlah or makhraj, particularly within the current financial and economic landscape, provided that certain parameters are observed. These findings are crucial for harmonizing different Sharīʽah views, facilitating the adaptation of the concept, and ensuring its effective implementation at the operational level. This is necessary to address the current situation of Islamic financial services in the dominance of conventional finance.

Application of al-Qarḍ al-Ḥasan For Social Financing Through Temporary Cash Waqf and Zakāh: A Maqāṣidic Approach

Bouhedda Ghalia — 2023-07-31

This research article aims to study the possibility of applying temporary cash waqf and zakāh in the contemporary world as they constitute the fundamental pillars of social financing in the Islamic financial and economic system, and they have a crucial role in achieving higher intents of Sharīʽah, like legal justice, social cooperation, and economic welfare. The problem of the research lies in the differences of opinions of scholars regarding the permissibility of applying al-qarḍ al-ḥasan on zakāh. This article attempts to employ the maqāṣid approach to give the preference among those views as well as delineating the rules and proposing suitable tools for it. Similarly, this research again takes the maqāṣid approach to offer the application of al-qarḍ al-ḥasan on temporary cash waqf. Content analysis and comparative analysis methods have been used in this research. By applying a maqāṣidic analogy between zakāh and cash waqf, the study concluded that al-qarḍ al-ḥasan is permissible to be granted through cash waqf based on the analogy of the permissibility of granting al-qarḍ al-ḥasan through zakāh. The study recommends that the proposed al-qarḍ al-ḥasan grants through zakāh and waqf be managed by governmental zakāh and waqf institutions as well as public Islamic banks for better governance.

Issues and Concerns of Zakāh Management in Bangladesh: A Way Forward from an E-Zakāh Perspective

Abu Hamid Aziz — 2023-07-31

Zakāh is considered as one of the fundamental pillars of Islam and an important Islamic financial concept. Zakāh plays a significant and critical role in addressing poverty and inequality in Muslim communities. However, implementation of effective, and successful Zakāh management poses significant challenges in many countries, including Bangladesh. This study aims to identify the challenges associated with Zakāh management in Bangladesh and explore the implementation of the E-Zakāh application in terms of its proper collection and distribution. Through a deeper understanding of the literature review and analysis of available accessible data, the study identifies several significant deficiencies and major shortcomings in the Zakāh administration including lack of transparency and accountability, inadequate infrastructure, limited awareness and education, ineffective monitoring and evaluation systems, and inefficient collection and distribution mechanisms. This study uses an analytical and descriptive method to examine the challenges in Zakāh administration in Bangladesh. By adopting a qualitative research approach, this study aims to gain an in-depth understanding of these challenges and propose solutions. Furthermore, the article proposes a broad strategy for the effective implementation of E-Zakāh that includes the establishment of technological infrastructure, regulatory reform, capacity building, and public awareness campaigns. Finally, the present study contributes to the existing literature by clarifying the obstacles and opportunities of the Zakāh administration in Bangladesh and proposes a viable solution through the adoption of E-Zakāh. By utilising the endless possibilities of technological advances, the proposed strategy could improve the impact of Zakāh, stimulate socio-economic growth, and empower marginalised communities in Bangladesh.

Editorial

IJFUS Editor — 2023-07-31