Islamic Public Law - Islamic Law in Theory and Practice PDF Download

Author: Ahmed Akgunduz
Publisher: IUR Press
ISBN: 9081726439
Category : Religion
Languages : en
Pages : 717

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“Islamic law contains explications and divisions that imply a classification in terms of public and private law. In this book we will explain the outlines of Islamic public law, e.g. First Chapter; Islamic constitutional law (al-siyāsah al-shar‘iyyah) and administrative law (al-siyāsah al-shar‘iyyah); Second Chapter; penal law (al-̒uqūbāt); Third Chapter; financial law (zakāt, ʻushr, ḫarāj and other taxes); Fourth Chapter; trial law (qaḍā), and Fifth Chapter: international public law (al-siyar). The fields of especially Islamic constitutional law, administrative law, financial law, ta‘zīr penalties, and arrangements concerning military law based on the restricted legislative authority vested by Sharī‘ah rules and those jurisprudential decrees based on secondary sources like customs and traditions and the public good (maslahah) all fell under what was variously called public law, al-siyāsah al-shar‘iyyah (Sharī‘ah policy), qānūn (legal code), qānūnnāmah, ‘orfī ḥuqūq etc. Since these laws could not go beyond Sharī‘ah principles either, at least in theory, they should not be regarded as a legal system outside of Islamic law. But Islamic penal law, financial law, trial law, and international law depend mostly on rules that are based directly on the Qur’an and the Sunnah and codified in books of fiqh (Islamic law) called Sharī‘ah rules, Sharʻ-i sharīf, or Sharī‘ah law. Such rules formed 85% of the legal system. In this book, we will focus on some controversial problems in the Muslim world today, such as the form of government in Islamic law and the relation between Islam and democracy. Islamic law does not stipulate a certain method of state government; nonetheless, we may say that the principles it decrees and its concept of sovereignty suggest a religious republic. As a matter of fact, Ḫulafā al-Rāshidūn (the Rightly Guided Caliphs), were both caliphs and religious republican presidents. We could say that this book has three main characteristics. i) We have tried to base our explanations directly on the primary Islamic law sources. For example, after reading some articles on the caliphate or tīmār system in articles or books by some Western scholars and even by some Muslim scholars, one might conclude that there are different views on these subjects among Muslim scholars. This is not true: Muslisms have agreed on the basic rules on legal subjects, but there are some conflicts regarding nuances and interpretations. If one reads works by Imām Gazzali, Ibn Taymiyyah, al-Māwardi, and al-Farrā’, one will not find any disagreement on the main rules, but there are some different interpretations of some concepts. We have tried to discover where they agreed and we have sometimes pointed to where they differed. ii) We have researched practices of Islamic law, especially legal documents in the Ottoman archives. For example, we explain ḥadd-i sariqa but also mention some legal articles from the Ottoman legal codes (qānunnāmes) and some Sharī‘ah court decisions like legal decrees (i‘lāmāt-i shar‘iyyah). It is well known that nobody can understand any legal system without implementing and practicing it. That also holds for Islamic law because theory alone does not yield a complete understanding of Sharī‘ah rules. iii) We have worked hard to correct some misconceptions and misunderstandings about Islamic law. That is why we appeal to the primary sources. For example, some scholars claim that the Ḥanafī jurist Imām Saraḫsī did not accept the idea of punishment for apostasy. We have studied his work al-Mabsūt and found this claim to be unfounded. The comparison between tīmār and fief is another example because the tīmār system is different from the fief system. Some scholars confuse the concept of sovereignty and governance. The Islamic state is not a theocratic state in the sense in which Europeans understand the term.”

Author: Wael B. Hallaq
Publisher: Cambridge University Press
ISBN: 1139489305
Category : Law
Languages : en
Pages : 209

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The study of Islamic law can be a forbidding prospect for those entering the field for the first time. Wael Hallaq, a leading scholar and practitioner of Islamic law, guides students through the intricacies of the subject in this absorbing introduction. The first half of the book is devoted to a discussion of Islamic law in its pre-modern natural habitat. The second part explains how the law was transformed and ultimately dismantled during the colonial period. In the final chapters, the author charts recent developments and the struggles of the Islamists to negotiate changes which have seen the law emerge as a primarily textual entity focused on fixed punishments and ritual requirements. The book, which includes a chronology, a glossary of key terms, and lists of further reading, will be the first stop for those who wish to understand the fundamentals of Islamic law, its practices and history.

Author: Jamal J. Nasir
Publisher: BRILL
ISBN: 9004480382
Category : Law
Languages : en
Pages : 290

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This new edition of the authoritative English-language treatment of Islamic personal status law gives practitioners and courts throughout the world direct access to this important body of law in its most up-to-date development. All Middle Eastern and North African Arab states are covered; new to this edition is coverage of recent provisions enacted in Kuwait, Yemen, and Sudan. The chapter on dissolution of marriage has been completely revised to reflect current legal interpretation and judicial practice in this rapidly changing area of Islamic law. Also new and especially valuable are English versions, for the first time anywhere, of fundamental Shiite and Jaafari legal works with the most thorough analysis and commentary available in any non-Arabic source. Dr. Nasir's much-appreciated methodology has been continued since the very successful first edition of 1986. For each topic - e.g., marriage, dower, dissolution of marriage, parentage, inheritance, and waqf - he begins with a consideration of the subject in Sharia law, and then goes on to present legislation and contemporary views, in particular Arab countries. This approach, while it clearly manifests the continuity of Islamic law respecting personal status, is of great practical value to judges and practitioners, especially those who must resolve disputes under Islamic law in non-Muslim countries.

Author: Abdullahi Ahmed An Na'im
Publisher: Syracuse University Press
ISBN: 0815650450
Category : Law
Languages : en
Pages : 273

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Toward an Islamic Reformation is an ambitious attempt to modernize Islamic law, calling for reform of the historical formulations of Islamic law, commonly known as Shari'a that is perceived by many Muslims to be part of the Islamic faith. As a Muslim, Abdullahi Ahmed An-Na'im is sensitive to and appreciative of the delicate relationship between Islam as a religion and Islamic law. Nevertheless, he considers that the questions raised here must be resolved if the public law of Islam is to be implemented today. An-Na'im draws upon the teachings and writings of Sudanese reformer Mahmoud Mohamed Taha to provide what some have called the intellectual foundations for a total reinterpretation of the nature and meaning of Islamic public law.

Author: Mohammad Talaat Ghunaimi
Publisher: Springer Science & Business Media
ISBN: 9401195080
Category : Law
Languages : en
Pages : 238

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The traditional doctrine of Islamic law in regard to international re lations is well known. The Shari'a includes many excellent provisions about declarations of war, treaties of peace, armistices, diplomatic envoys, negotiations and guarantees of safe conduct. But the fact remains that it divides the world, broadly speaking, into the "Abode of Islam" and the "Abode of 'War," and that it envisages the continu ance of intermittent war between them until the latter is absorbed in the former. In the course of such fighting, and in the intervals in be tween, many civilities were to be meticulously observed; but prisoners of war could be killed, sold or enslaved at the discretion of the Muslim authorities, and the women of those who resisted the advance of Islam could be taken as slave-concubines, regardless of whether they were single or married. The "Abode of Islam" did not, indeed, consist ex clusively of Muslims, for those whose religion was based on a book accepted by Islam as originally inspired and in practice, indeed, those other religions too - were not forced to embrace Islam but only to accept Muslim rule. They were granted the status of dhimmis, were protected in their persons and their property, were allowed to follow their own religion in an unobtrusive fashion, and were accorded the position of essentially second-class citizens. They were also of course, perfectly free to embrace Islam; but for a Muslim to be converted to another faith involved the death penalty.

Author: Jamal J. Nasir
Publisher: Brill Archive
ISBN: 9781853332807
Category : Law
Languages : en
Pages : 378

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This huge piece of legislation promulgated in September 1993 represents the culmination of a major project aimed at producing comprehensive unified regulation of all areas of commercial activity. In the introductory chapter to the law, which concerns its application, it is stipulated that commercial matters with regard to which specific federal laws are promulgated shall be subject to the provisions of these laws & to such provisions of the present law as do not conflict with them (Article 3). The main body of the law commences with definitions of what constitutes commercial activity: these persons who shall be deemed to be traders, & the conditions of eligibility to engage in trade. It sets out the requirements of accounting & record keeping which are obligatory for all traders. There is comprehensive legislation of a range of general commercial matters such as commercial houses, trade names, commercial data, commercial obligations & contracts, sale on deferred terms, sale at action, international sales, commercial pledges & deposits in public depositories. Following this there is detailed regulation of several of the most important specific areas of commercial activity including the different forms of commercial agency, commercial representation, brokerage & carriage of goods & persons. The large section of banking operations is systematic & exhaustive, as is the regulation of actions & transactions involving commercial & financial documents. The last section deals with bankruptcy, composition to avert bankruptcy, the procedures & administration of bankruptcy & its consequences. Article 196 states that the establishment of a Stock Exchange will be subject to the agreement of the Council of Ministers & promulgation of a Federal Law regulating the activity of the Exchange. The Law is presented in a comprehensive & consistent manner & is clear & accessible. An invaluable reference to all those who have business interests in or with the United Arab Emirates.

Author: Elizabeth Lhost
Publisher: UNC Press Books
ISBN: 1469668130
Category : History
Languages : en
Pages : 377

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Book Description
Beginning in the late eighteenth century, British rule transformed the relationship between law, society, and the state in South Asia. But qazis and muftis, alongside ordinary people without formal training in law, fought back as the colonial system in India sidelined Islamic legal experts. They petitioned the East India Company for employment, lobbied imperial legislators for recognition, and built robust institutions to serve their communities. By bringing legal debates into the public sphere, they resisted the colonial state's authority over personal law and rejected legal codification by embracing flexibility and possibility. With postcards, letters, and telegrams, they made everyday Islamic law vibrant and resilient and challenged the hegemony of the Anglo-Indian legal system. Following these developments from the beginning of the Raj through independence, Elizabeth Lhost rejects narratives of stagnation and decline to show how an unexpected coterie of scholars, practitioners, and ordinary individuals negotiated the contests and challenges of colonial legal change. The rich archive of unpublished fatwa files, qazi notebooks, and legal documents they left behind chronicles their efforts to make Islamic law relevant for everyday life, even beyond colonial courtrooms and the confines of family law. Lhost shows how ordinary Muslims shaped colonial legal life and how their diversity and difference have contributed to contemporary debates about religion, law, pluralism, and democracy in South Asia and beyond.

Author: Chibli Mallat
Publisher:
ISBN: 9781853334146
Category : Islam and state
Languages : en
Pages : 282

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Author: Richard A. Debs
Publisher: Columbia University Press
ISBN: 0231520999
Category : History
Languages : en
Pages : 215

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Richard A. Debs analyzes the classical Islamic law of property based on the Shari'ah, traces its historic development in Egypt, and describes its integration as a source of law within the modern format of a civil code. He focuses specifically on Egypt, a country in the Islamic world that drew upon its society's own vigorous legal system as it formed its modern laws. He also touches on issues that are common to all such societies that have adopted, either by choice or by necessity, Western legal systems. Egypt's unique synthesis of Western and traditional elements is the outcome of an effort to respond to national goals and requirements. Its traditional law, the Shari'ah, is the fundamental law of all Islamic societies, and Debs's analysis of Egypt's experience demonstrates how Islamic jurisprudence can be sophisticated, coherent, rational, and effective, developed over centuries to serve the needs of societies that flourished under the rule of law.

Author: Ahmed Akgunduz
Publisher: IUR Press
ISBN: 9491898116
Category : Law
Languages : en
Pages : 825

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There is no explicit separation in Islâmic law between public and private law, but a special system has been used throughout history. Some scholars use the term Muslim personal law, which derived from the term al-aḥwâl al-shaḫṣiyyah in Fiqh books. But we prefer Islâmic private law; because Muslim personal law indicates different legal meaning – rules governing natural and legal persons. In this book, we will elaborate on Islâmic rules relating to seven branches of private law: personal law, family law, inheritance law, obligations and contracts’ law, property law, commercial law, and international private law. We will explain or summarize Islâmic rules in this book, rather than my (the author’s) personal views. Unfortunately, there is a misunderstanding in Western countries: if any Muslim scholar writes an article or book or grants an interview to a journalist to explain Islâmic rules on any issue, most Westerners, and especially people ignorant of Islâmic Law attribute these views to this scholar and holds him or her accountable. For example, a Dutch journalist came to see me and asked about the issue of beating women in the Qur’an, I explained the verse in the Qur’an and some interpretations by the Prophet Muhammed and Muslim jurists. The journalist did not understand what I explained, and many people have accused me of advising Muslims to beat their women. This is absolutely false. This is why we have to explain the following points. The first point is this: All the regulations in Islâmic law are divided into two groups with respect to to legal authority. First, rules that were based directly on the Qur’an and the Sunnah and codified in books on Fiqh (Islâmic Law) are called Sharî‘ah rules, Shar‘-i Sharîf, or Sharî‘ah law; these rules constitute 85% of the legal system. The exclusive sources of these rules are the Qur’an, the consensus of Muslim jurists, and true analogy (qiyâs). All explanations of these rules based completely on the Qur’an and the Sunnah. If any Muslim scholar writes an article on ‘beating women’ or ‘polygamy,’ he is responsible only for his/her interpretations. Could any scholar be responsible for the religious ideology that he/she explains? Are his/her explanations to be considered propaganda for that religion or ideology? Absolutly not. Western authorities, politicians and journalists should know that Muslims hold that every machine has a manual. If the manual is not followed when the machine is being used or operated, it will break. Allah sent the Qur’an as the manual for human beings. If a society does not take the Qur’an as its guide, it is destined to have the same fate as a machine that is operated without the manual. This is a basic creed for Muslims. A Muslim cannot disagree with a explicit verse of the Qur’an. Second, financial law, land law, ta‘zîr penalties, arrangements concerning military law and administrative law in particular were based on the restricted legislative authority vested by Sharî‘ah decrees and those jurisprudential decrees that were founded on secondary sources such as customs and traditions and the public good, which fell under public law, al-Siyâsah al-Shar‘iyyah (Sharî‘ah policies), Qânûn (Legal Code), and the like. Since these could not exceed the limits of Sharî‘ah principles either, they should not be viewed as a legal system outside of Islâmic Law. The second point is that another classification of the Islâmic rules should be explained. Many Muslims and non-Muslims think that all injunctions in Islâmic Law, such as polygamy and slavery, were established by the Qur’an or the Sunnah directly, and Islâmic Law has been criticized severely for this. The supposition here is false. A further point that causes confusion is the view that there was no slavery, male or female, before Islâm and that Islâm introduced it. There are, however, two kinds of injunctions in Islâmic law. 1) The first are injunctions that were laid down by Islâm as principles for the first time since they did not exist in previous legal systems. Islâm established these principles, such as zakâh, waqf(endowments) and inheritance shares. Muslim scholars state that these are completely beneficial for humankind as a whole. They also contain many instances of wisdom and purpose, even if people are not aware of them. 2) The second are injunctions that Islâm did not introduce; they already existed and Islâm modified them. That is, Islâm was not the first to set them down; rather, they were part of the law systems of other societies and were applied in a savage form. Since it would have been contrary to human nature to abolish injunctions of this kind suddenly and completely, Islâmic Law modified them so that they were no longer barbaric but civilized. Slavery and polygamy are good examples of this.[2] My third point is that I have explained theoretical rules of Islâmic Law in this book, but have not neglected the practice aspect of Islâmic private law. We have focused on the practice of the Ottoman State for Sharî‘ah especially because the Ottoman State practiced Islâmic Law completely, and we have archival documents proving this claim. The study of Shar‘iyyah Records (Shari‘iyyah Sijilleri) proves that in the Ottoman State Sharî‘ah rules were taken as the basis for personal law, family law, inheritance law, jus obligationum, law of commodities, commercial law, and all the branches of private law with respect to international private law. The analysis of the two essential sources of information regarding Ottoman law, viz. legal codices and Shar‘iyyah Records, leads to the following irrefutable conclusion: the Ottoman legislative authorities only and solely codified administrative law, with the exception of various subjects of constitutional law, property law, laws regarding state land, military law, financial law, ta‘zîr(punishment by way of reproof), crimes in criminal law and their penalties and decrees regarding some exceptional issues of private law. In issuing decrees on these it codified Sharî‘ah principles – if any – since matters transferred to the rulers’ arrangements would be made in consideration of such secondary sources as the public good, customs, and traditions. Because it could never be alleged that a state’s legal system consisted solely in the above-mentioned subjects, it could also not be claimed that the stated issues were arranged in disregard of Shar‘-i Sharîf. The explanations below will clarify this matter.[3] The fourth point is that contemporary Islâmic codes from different Muslim countries were not negleced. I have sometimes looked at the Morroccan Family Code (al-Mudawwana),[4] Egyptian laws that are the root of Muslim Middle Eastern countries’ legal systems, Pakistan’s law code which was based on the Ḥanafî Law School. We could say that in Lebanon, Syria, Iraq, Kuwait, Jordan, the effects of Ottoman legal codes, like Majallah and family law continue. The fifth point is as follows. This book is based principally in the Ḥanafî School and Ottoman practice. Nonetheless, comparisons with other schools have been made, especially with the Mâlikî School, which is the official school in Morrocco, the United Arab Emirates, and some other countries, the Shâfi‘î School, which is the official school in Indonesia and some other countries, the Ḥanbalî School, the official school in Saudi Arabia, and some other countries, and finally the Ja’farî School, which is the official school especially in Iran. For comparison between schools, this work has benefitted from some major works on Islâmic law. These works include: M. Zarqa, Al-Fıqh al-İslâmî Fî Thawbih al-Jadîd, c. I-II, Dimaşk 1395/1975; ‘abd al-Rahman al-Jaziri, Al-Fiqh ‘ala al-maḏâhib al-arba‘a, Cairo, 1969; Al-Shahid al Thani (Zayn al-Din Muḥammad ibn ‘Ali al–Jab’i al-‘Amili [d. 965/1558]), Al-Rawdat al-bahiyya fi sharh al-lum‘at al-Dimashqiyya, Beirut, 1967; Abdullah ibn Ahmad ibn Qudâmah al-M’aqdisî, Al-Muqni‘, Cairo, 2005; Ḫalil bin Isḥaq, Al-Tawdîh Sharhu Muḫtasar ibn al-Hâjib, Casablanca, 2012. Some comparative works have also been of benefit. These include: Imran Ahsan Ḫan Nyazee, Outlines of Muslim Personal Law, Advanced Legal Studies Institute, Islâmabad, Pakistan, 2011; Chibli Malla, “Identity and Community Rights Islâmic Family Law: Variations on State,” in Islâmic Family Law, edited by Chibli Mallat & Jane Connors, Graham & Trotman Limited, London 1993; Ahmad Nasir, The Status of Women under Islâmic Law and Modern Islâmic Legislation, Brill, Leiden and An Introduction to the Law of Obligations of Afghanistan, edited by Trevor Kempner, Andrew Lawrence, and Ryan Nelson, Stanford Law School, (PDF). We should not forget some official or semi-official legal codes in Muslim countries that are completely based on Sharî‘ah. For example, Muḥammad Qadri Pasha’a (1306/1889), Murshid al-Hayrân (Guide for the Perplexed), which consists of 1,045 articles; Al-‘Adl Wal Insâf Fi Hall Mushkilât al-Awqâf (Justice and Equity in Solving the Problems of Endowments), which consists of 343 articles; and Al-Aḥkâm al-Shar‘iyyah Fi al-Aḥwâl al-Shaḫṣiyyah (Legal Rulings on Personal Status Law), which consists of 647 articles; Morroccan Family Law (Mudawwanah); The Egyptian Civil Code was written in 1949, whose primary author was Abdel-Razzak al-Sanhuri, who was assisted by Dean Edouard Lambert of the University of Lille; The Egyptian Civil Code has been the source of law and inspiration for numerous other Middle Eastern jurisdictions, including the pre-dictatorship kingdoms of Libya, Jordan, and Iraq (both drafted by Al-Sanhuri himself and a team of native jurists under his guidance), Bahrain, as well as Qatar (the last two merely inspired by his notions) and the commercial code of Kuwait (drafted by Al-Sanhuri); Pakistan Muslim Family Law Ordinance 1961. This book is divided into seven chapters: 1) personal law, 2) family law, 3) inheritance law, 4) obligations and contract Law, 5) property law, 6) commercial law, 7) international private law. We repeat again that we have preferred to write what Muslim jurists (fuqahâ) have argued is how the Qur’an and the Sunnah should be interpreted. Our success will be measured by our ability to correctly reproduce what existed in Islâmic sources. Every human enterprises falls short; we are ready to perfect our study with the help of contributions by readers and constructive criticism. I would like to thank all those who read this book and contribute constructively to it. I am thankful to God Who enabled me to complete this book.