There is a common understanding among logicians today that nonmonotonic types of reasoning, such as defeasible or presumptive, can clearly warrant a rational acceptance of its conclusion. Recognition of the significance and legitimacy of these forms of arguments, which were considered for long as fallacious, is believed to be very recent and many logicians tended to reject any discussions around it within the tradition of logic after Aristotle. In contrast, Islamic jurisprudence (fiqh), since medieval age, has recognised the validity (...) and importance of non-deductive forms of reasoning, analysed the structures of such arguments and demonstrated how the conventionally understood fallacies are not essentially fallacies. Qiyās – generally represents analogical reasoning – is taken here as a case of defeasible reasoning in Islamic argumentation. This paper will show through works of two emblematic medieval Muslim jurist-logicians, al-Juwainī and al-Ghazzālī, that understanding the legitimacy and the structure of non-deductive forms of arguments is at the core of Islamic legal theories (usūl al-fiqh), and that they recognised its legitimacy and proposed a dialectical method (jadal) of approaching it. Les logiciens comprennent généralement que les types de raisonnement non monotones peuvent justifier l’acceptation rationnelle des conclusions. L’importance et la légitimité de ces formes d’arguments, qui ont longtemps été considérées comme fallacieuses, ont été controversées parmi les logiciens de la tradition logique aristotélicienne. En revanche, la jurisprudence islamique (fiqh) a depuis longtemps reconnu l’importance des formes de raisonnement non déductives et a démontré que les sophismes conventionnellement compris ne sont pas essentiellement des sophismes. Le qiyās – qui représente généralement le raisonnement analogique – est un exemple de raisonnement réfutable dans l’argumentation islamique. Je montre à travers les travaux de deux juristes-logiciens musulmans médiévaux emblématiques, al-Juwainī et al-Ghazzālī, que la compréhension de la légitimité des formes d’arguments non déductives est au cœur des théories juridiques islamiques (usūl al-fiqh), qui ont proposé une méthode d’approche dialectique (jadal). (shrink)

The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. By Aron Zysow. Resources in Arabic and Islamic Studies, vol. 2. Atlanta: Lockwood Press, 2013. Pp. xxviii + 330. $32.95.

Al-Qāḍī al-Nuʿmān, The Disagreements of the Jurists: A Manual of Islamic Legal Theory. Edited and translated by Devin J. Stewart. Library of Arabic Literature. New York: New York University Press, 2015. Pp. xxxviii + 405. $40.

Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory. By Robert Gleave. Edinburgh: Edinburgh University Press, 2012. Pp. xii + 212. $120, £75 ; $39.95, £24.99.

This article presents two short but complete treatises on legal theory. The first was written by Ibn Surayj as an addendum to his compendium on Shāfiʿī law, al-Wadāʾiʿ, and the second by Abū Bakr al-Khaffāf, who included it as an introduction to his legal text al-Aqsām wa-l-khiṣāl. An analysis of these texts reveals the existence of a self-conscious legal-theoretical discourse around the turn of the fourth/tenth century that connects al-Shāfiʿī’s Risāla with the so-called mature uṣūl tradition (...) known from the late fourth/tenth century onward. The analysis also sheds considerable light on developments in legal theory in this period, such as the emergence of the term ʿilla, the parallel rise of legal dialectics, the consequences of adopting the idea of waḍʿ, and generally the inclusion of theological concerns in legal theory. (shrink)

La insistencia de Ibn Hazm en la interpretación literal del Corán y la Sunna ha llevado frecuentemente a los investigadores modernos a concluir que él es un pensador conservador o dogmático. En realidad, no es ninguna de las dos cosas. El zahirismo de Ibn Hazm enfatiza el alcance limitado de la ley religiosa islámica, e intenta reducir las pretensiones de los juristas musulmanes de hablar en nombre de la ley de Dios. Esta metodología le lleva a apoyar el racionalismo, el (...) individualismo y el anticlericalismo. Ibn Hazm argumenta con consistencia a favor de estos principios en sus trabajos sobre teoría legal islámica, entre los que se incluye el texto al-Nubdha al-kafiya fi usul ahkam al-din que traducimos aquí. Esta propuesta implica socavar todo el sistema del madhhab, lo que explica la reacción negativa que recibió del sistema religioso establecido. En lugar del madhhab, Ibn Hazm intenta hacer valer la responsabilidad individual de cada musulmán en la obediencia a la ley de Dios, tal y como se revela claramente en el texto sagrado del Islam. (shrink)

La insistencia de Ibn Hazm en la interpretación literal del Corán y la Sunna ha llevado frecuentemente a los investigadores modernos a concluir que él es un pensador conservador o dogmático. En realidad, no es ninguna de las dos cosas. El zahirismo de Ibn Hazm enfatiza el alcance limitado de la ley religiosa islámica, e intenta reducir las pretensiones de los juristas musulmanes de hablar en nombre de la ley de Dios. Esta metodología le lleva a apoyar el racionalismo, el (...) individualismo y el anticlericalismo. Ibn Hazm argumenta con consistencia a favor de estos principios en sus trabajos sobre teoría legal islámica, entre los que se incluye el texto al-Nubdha al-kafiya fi usul ahkam al-din que traducimos aquí. Esta propuesta implica socavar todo el sistema del madhhab, lo que explica la reacción negativa que recibió del sistema religioso establecido. En lugar del madhhab, Ibn Hazm intenta hacer valer la responsabilidad individual de cada musulmán en la obediencia a la ley de Dios, tal y como se revela claramente en el texto sagrado del Islam. (shrink)

The rapid development of complex income taxation and welfare systems in the 20th century may give the impression that progressive wealth redistribution systems are uniquely modern. However, religious systems provided similar mechanisms for addressing economic injustice and poverty alleviation centuries earlier. Zakat is the obligation of almsgiving and is the third pillar of Islam--a requirement for all believers. In the early development of the Islamic community, zakat was collected as a tax by the state and the funds were distributed (...) to a defined set of needy groups. As a theoretical matter, there are three insights that make zakat an especially relevant subject for modern legal scholars. First, zakat is an example of a modest wealth tax combined with an income tax that may be illustrative in the discourse regarding wealth taxes. Second, the jurisprudence of zakat supports the ethical conclusions of scholars who contend that property rights are attached to post rather than pre-tax income. Third, to the extent that zakat is considered a principal source of revenue for public programs, it might imply a limited role for government, focusing on equitable distribution of goods. This paper begins with a thorough evaluation and synthesis of the traditional Islamic jurisprudence related to zakat. The next section identifies three broad approaches to zakat adopted by modern Muslim states, with particular emphasis on ways that zakat is institutionalized legally. This is followed by an empirical analysis of the correlation of the approaches to zakat with individual income and wealth stratification. The article concludes with observations and policy recommendations related to zakat and broader legal theory based on the earlier qualitative analysis and empirical findings. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Islamic Disputation Theory: The Uses & Rules of Argument in Medieval Islam by Larry Benjamin MillerKhaled El-RouayhebLarry Benjamin Miller. Islamic Disputation Theory: The Uses & Rules of Argument in Medieval Islam. Logic, Argumentation and Reasoning 21. Cham: Springer 2020. Pp. xviii + 143. Hardback, €77.99.Very few unpublished PhD dissertations have had a formative influence on a field. One of the precious few is Larry (...) Miller's Princeton dissertation from 1984 on Islamic disputation theory. It proposed an original and compelling account of the development of the discipline, from the earliest extant Arabic works in the tenth century to the composition of classic madrasa handbooks in the late thirteenth century. It has been cited regularly in the past decades and has served as the starting point for all later studies of Arabic/Islamic dialectics in European languages. The fact that it has finally been published is a fitting tribute to a study that is even more admirable for having been written when many of the primary sources were still only available as manuscripts.Part of the explanation for why the dissertation was not published sooner may be that its author did not pursue an academic career. And as he states in a short preface, he has not kept abreast of all relevant studies and editions that have appeared since his dissertation. A thorough revision and update has therefore not been possible. Though some minor corrections and revisions have been made, the book is still by and large the influential 1984 dissertation, now made available with a short introduction by Walter Young, one of the leading younger scholars in the field, along with helpful indices of proper names and subjects.Miller's narrative begins with Arabic works on disputation (jadal) by a number of theologians from the late ninth and tenth centuries, such as Ibn al-Rāwandī (d. 911), [End Page 518] al-Ash'arī (d. 935), and the Karaite Jewish scholar al-Qirqisānī (d. ca. 960). The basic assumption was that a questioner (sā'il) would ask a claimant (mu'allil) (i) what his view is; (ii) what the ground or reason ('illa) for that view is; (iii) the appropriateness of the ground/reason for the view; and (iv) to verify the ground/reason by showing it to be commensurate with the view. The ground/reason for the theological dialecticians was standardly an entity or property, not a premise. The reasoning tended to be informal and analogical, as opposed to explicitly making syllogistic deductions from quantified premises.Parallel to this theological tradition of jadal, there was an Arabic Aristotelian tradition that took its point of departure from Aristotle's Topics, translated into Arabic more than once in the period from the late eighth to the early tenth centuries. Though also often referred to as jadal, this tradition, represented by the writings of al-Farabi (d. 950), Avicenna (d. 1037), and Averroes (d. 1198), retained distinct features. It tended to deny any epistemic value to dialectics, instead seeing it as useful only insofar as it provided logical training. For the Aristotelian/Neoplatonic philosophers, the pursuit of truth was the preserve of demonstrative syllogism (burhān). Whereas the theological dialecticians envisaged a claimant (mu'allil) and a questioner (sā'il), with the burden of proof on the former, the philosophical tradition had a questioner (sā'il) seek, in the manner of Socratic elenchus, to elicit from a respondent (mujῑb) a series of answers that would allow the construction of a syllogism whose conclusion contradicted the respondent's initial position.From the time of al-Ghazali (d. 1111), Islamic theologians tended to take over the syllogistic ideal of reasoning from the philosophers, perhaps explaining why theological writings on jadal trail off after the eleventh century. The informal, analogical jadal tradition continued, however, in the writings of Islamic jurists. From the eleventh century, scholars such as Abū Isḥāq al-Shīrāzī (d. 1083) and al-Juwaynī (d. 1085) wrote works on jadal in which the examples are disputes about questions of Islamic law and the disputants are partisans of the various legal schools. This tradition of what Miller calls "juristic dialectics" (74, 95) later adopted some... (shrink)

Kitap, Aron Zysow’un Harvard Üniversitesinde 1984 yılında sunmuş olduğu doktora tezinin geliştirilerek yayımlanmış halidir. Sunumunun üzerinden yaklaşık otuz yıl gibi uzunca bir süre geçtikten sonra yayımlanmıştır. Ancak yayımlanmasının bu kadar gecikmiş olması, tezin, fıkıh usûlü ve kelâm alanlarında batıda yapılan akademik çalışmalar üzerindeki katkısını ve etkisini azaltmış değildir. Kitap hakkında alan indekslerinde taranan dergilerde pek çok kitap kritiği yazılmış olması da bu etkinin göstergelerindendir.

Haber-i vâhidin delil değeri problemi, 2. (8.) yüzyıldan itibaren kelamcılar (:Mutezile), fıkıhçılar ve hadisçiler arasında tartışılan ve hakkında kayda değer bir literatür ortaya çıkan usûlî konuların başında gelmektedir. Şeybânî (ö. 189/805), Şâfiî (ö. 204/820), İsâ b. Ebân (ö. 221/836) ve Buhârî (ö. 256/870) gibi sünnî ekolün tanınmış fıkıh ve hadis alimlerinin haber-i vâhid lehine ortaya koydukları çalışmalar bu noktada oldukça etkili olmuştur. Bu etkinin bir sonucu olarak başlangıçta haber-i vâhidi toptancı bir yaklaşımla reddeden Mutezili isimler, yerini zamanla Ebû Ali el-Cübbâî (...) (ö. 303/916) gibi başka bir delille desteklenmesi şartıyla kabul eden alimlere bırakmıştır. Cübbâî, muhtemelen Kitâbü’l-ahbâr isimli günümüze ulaşmayan çalışmasında, hem tek kişinin haberi anlamındaki haber-i vâhidin hücciyet delillerini tenkit etmiş hem de çeşitli delillerle kendi kişisel görüşünü temellendirmeye çalışmıştır. Onun bu tenkit ve görüşleri, 4. (10.) yüzyılın önemli Hanefi fakih ve usulcüsü Cessâs (ö. 370/981) tarafından usul ilminin kurucu metinlerinden el Fusûl’de üstü kapalı bir şekilde nakledilmiş ve eleştirel bir değerlendirmeye tabi tutulmuştur. Araştırmamızda Cübbâî’nin, haber-i vâhidin delil değeri, kabul şartları konusundaki eleştiri ve görüşleri ile Cessâs’ın ona verdiği cevaplar ve karşı eleştirileri ele alınmıştır. (shrink)

The ramifications of modernity and the resultant challenges compelled Ottoman intellectuals and state officials to contemplate matters like as innovation, progress, and change. The pursuit of remedies to eradicate political, military, and economic deficiencies was similarly evident in the legal domain. Ziya Gökalp articulated his perspectives on the origins, societal efficacy, and adaptability of law within the framework of the Turkism movement, presenting several methodologies that redefined the interplay among religion, law, society, and state. The most characteristic method among (...) them is the internal sociological methodology of law, which he equated with his own identity. Other Turkist figures of the time supported this theory, which aimed to bring dynamism to Islamic law in line with modern demands and changing conditions, as well as to establish a national law-society-state relationship. Another approach put forward by Gökalp was based on the distinction between legal (qāḍāī) and ethical/spiritual (diyānī) aspects that were established in traditional Islamic law. In Gökalp's intellectual life that extends from the last years of the Ottoman Empire to the first years of the Republic, two different stages stand out. Gökalp, who tended to restructure jurisprudential concepts with an original interpretation in the late Ottoman period, became a persistent defender of the distinction between religion and state as well as religion and law in the Republican period. However, he did not deny the role of religion in the existence of the nation and emphasized the place of religious institutions, such as the office of Sheikhul-Islam, in the Republican period. Although he took the traditional jurisprudential perspectives into consideration, he could not escape from the criticism of his fellow intellectuals such as İzmirli İsmail Hakkı, who represented the traditional understanding. This article addresses Ziya Gökalp's views that he developed on fiqh and sociology in the Turkish modernisation process and sheds light on the possible reflections of these views on the Republican period. (shrink)

There is burgeoning interest in the field of “Islamic” bioethics within public and professional circles, and both healthcare practitioners and academic scholars deploy their respective expertise in attempts to cohere a discipline of inquiry that addresses the needs of contemporary bioethics stakeholders while using resources from within the Islamic ethico-legal tradition. This manuscript serves as an introduction to the present thematic issue dedicated to Islamic bioethics. Using the collection of papers as a guide the paper outlines (...) several critical questions that a comprehensive and cohesive Islamic bioethical theory must address: (i) What are the relationships between Islamic law (Sharīʿah), moral theology (uṣūl al-Fiqh), and Islamic bioethics? (ii) What is the relationship between an Islamic bioethics and the lived experiences of Muslims? and (iii) What is the relationship between Islamic bioethics and the state? This manuscript, and the papers in this special collection, provides insight into how Islamic bioethicists and Muslim communities are addressing some of these questions, and aims to spur further dialogue around these overaching questions as Islamic bioethics coalesces into a true field of scholarly and practical inquiry. (shrink)

The Dialectical Forge identifies dialectical disputation as a primary formative dynamic in the evolution of pre-modern Islamic legal systems, promoting dialectic from relative obscurity to a more appropriate position at the forefront of Islamic legal studies. The author introduces and develops a dialectics-based analytical method for the study of pre-modern Islamic legal argumentation, examines parallels and divergences between Aristotelian dialectic and early juridical jadal-theory, and proposes a multi-component paradigm—the Dialectical Forge Model—to account for (...) the power of jadal in shaping Islamic law and legal theory.In addition to overviews of current evolutionary narratives for Islamic legal theory and dialectic, and expositions on key texts, this work shines an analytical light upon the considerably sophisticated “proto-system” of juridical dialectical teaching and practice evident in Islam’s second century, several generations before the first “full-system” treatises of legal and dialectical theory were composed. This proto-system is revealed from analyses of dialectical sequences in the 2nd/8th century Kitāb Ikhtilāf al-ʿIrāqiyyīn / ʿIrāqiyyayn through a lens molded from 5th/11th century jadal-theory treatises. Specific features thus uncovered inform the elaboration of a Dialectical Forge Model, whose more general components and functions are explored in closing chapters. (shrink)

The object of this paper is to elaborate an understanding of Islamic law and legal theory in terms of the conceptual framework provided by Legal Positivism. The study is not based on denying or contesting the claim of Islamic law to being of divine origin; rather, it is based on the historical reality of Islamic law as part of a (once) living legal tradition, with structure, method, and theory, regardless of claims of (...) origin. It will be suggested that Ash‘arism may be taken as providing an Islamic version of Legal Positivism, and that the objections which Mu‘tazilism raised in the face of Ash‘arism were not different in substance from some of the objections that have been directed at contemporary Legal Positivism. It will also be suggested that the Ash‘arites and the Mu‘tazilites were not opposed to each other in the way they are commonly supposed to have been. Rather, they were preoccupied with different notions of what it is to be obliged (to have an obligation) to do something. (shrink)

For over a century, intellectual property regimes have been justified using Western philosophical theories rooted in the idea that IP must reward talent and maximize global stocks of knowledge and cultural products. Reframing IP in a context of legal pluralism, Ezieddin Elmahjub brings an Islamic and comparative narrative to the appropriate design and scope of IP rights, and in doing so criticizes the dominance of Western influence on a global regime that impacts the ability of people to access (...) medicine, to read, to imagine, and to reshape popular culture. The Islamic vision of IP, which is based on a broad theory of social justice, maintains that IP cannot simply be seen as a reward for effort or tool to maximize economic efficiency but as one legal right within a complicated distributive scheme affecting fundamental human rights, equal opportunities, and human capabilities. (shrink)

The thesis examines the origins and function of legal theory within the context of the development of early Islamic law. I argue against the depiction of the development of law as a series of compromises between traditionalism and rationalism. Rather, by evading the demands of traditionalism, law evolved into a complex doctrinal entity rooted in the social structures of third-century Abbasid society. This revision of the development of law provides a context to evaluate early works of (...) class='Hi'>legal theory. Moreover, in context of my analysis of the development of law, I attempt to explain the emergence of legal theory as an independent discipline and its function within the greater structure of law. (shrink)

In this article, I apply a policy-oriented applied Islamic bioethics lens to two verdicts on the permissibility of using vaccines with porcine components. I begin by reviewing the decrees and then proceed to describe how they were used by health policy stakeholders. Subsequently, My analysis will highlight aspects of the verdict's ethico-legal arguments in order to illustrate salient legal concepts that must be accounted for when using Islamic verdicts as the basis for health policy. I will (...) conclude with several suggestions for facilitating a more judicious use of verdicts in policy-relevant discourse. My analysis is meant to contribute to the dialogue between science and religion, and aims to further efforts at developing health policies that value health while accommodating religious values. In the encounter between the Islamic tradition and global public health, a multidisciplinary dialogue, where Islamic legists become aware of the health policy implications of their ethico-legal pronouncements, and where health policy actors gain a literate understanding of Islamic ethico-legal theory, will lead to verdicts that better meet the needs of patients, health workers, and religious leaders. (shrink)

Writings on al-Shāṭibī have focused on his views on maṣlaḥah and Maqāṣid al-Sharīʿah. His approach to the interpretation of the Qurʾān and the implications of such an approach have only rarely been heeded. This study addresses this aspect of al-Shāṭibī’s work. It essentially asserts that in restructuring Islamic legal theory around the idea of Maqāṣid al-Sharīʿah, al-Shāṭibī brought jurists and Qurʾān commentators closer to one another. It further argues that his contribution went beyond the interest of jurists (...) centred on legal reasoning by holding a comprehensive hermeneutical view of the Qurʾān informed by belief in the thematic unity of its sūrahs and verses. Taking such unity as the cornerstone of a sound understanding of the Qurʾān capable of grasping its eternal values and universal principles, he developed a methodology that has inspired a few eminent contemporary Muslim scholars who have developed what has come to be known as thematic interpretation of the Qurʾān. This article discusses al-Shāṭibī’s hermeneutics of the Qurʾān by delineating his epistemic and methodological propositions. Thus, the author aims to show the existence of semantic unity and epistemic interconnectedness among different disciplines in Islamic scholarship. (shrink)

Apart from the knowledge of specialists in the field of Islamic law, the perception of Islamic law, for the most part, is that of a law with no structure and, therefore, no logical consistency. This depiction is often theorized by using the term Kadijustiz. In this essay, I seek to undermine this view and propose that Islamic legal theorists developed a systematic process of employing formal logic in Islamic law. I argue that these arguments exist, (...) were negotiated regarding the nuances of their form and modes of applicability, and were utilized in concrete cases in books of Islamic legal theory. By formal logic, I am referring to inferential forms of reasoning. The paper is divided into two main parts: first, I describe the notion of Kadijustiz and offer objections to this view. Second, I explain the primary arguments that fall under the category of qiyas. These include, broadly, deduction, induction, and legal analogy. My hope is that this essay contributes to the appreciation of Islamic Law as a rigorous legal system and serves as a reference for some of the modes of thinking and processes of legal reasoning when engaging with Islamic law. (shrink)

The Anthropology of Islamic Law shows how hermeneutic theory and practice theory can be brought together to analyze cultural, legal, and religious traditions. These ideas are developed through an analysis of the Islamic legal tradition, which examines both Islamic legal doctrine and religious education.

The article examines Muhammad Asad’s epistemological ground, reflected in his works on the principle of Islamic governance and its basic constitution and foundational structure. In this regard, he formulated the constitutional ideas of the Islamic state, whose constitution contains the provision of Islamic law that practices and implements the norms and postulates of the Divine Writ. This idea was partly enshrined in some of Global South constitutional law, whose political establishment was formed in 1947. It essentially discussed (...) Muhammad Asad’s political ideas and their underlying philosophy as espoused in his works. The work was conducted using qualitative approaches to library research. The data were analyzed using descriptive, analytical, and comparative techniques. The finding shows that Muhammad Asad had formulated a comprehensive theoretical framework of the legal aspect of Islamic governance drawn up from the fundamental principle and doctrine of the sharia and its moral norms deriving from the Qur’anic and the sunnah bases while advocating democratic ideals and principles based on conventional practice and requirement of the modern context of the nation-state. (shrink)

The paper provides valuable accounts of the general concepts underlying privacy law in both cultures, and great detail about the impact of criminal procedure and evidence rules on privacy in reality rather than legal theory. It is, in this sense, a “realist” approach to privacy, particularly but not exclusively in relation to sexual activity. The distinction which the article draws between the frameworks within which privacy is conceived broadly, self-determination and limited government in the USA, protection of one’s (...) persona in Europe, and reputation in Islamic law. However, the paper argues that Western and Islamic traditions share many of the same concepts about the tests to be applied when deciding how far an intrusion on privacy is justified and value many of the same interests in doing so. At the same time, it will highlight those areas where they differ which are not ones of crucial importance when deciding, for example, what are the proper limits on mass surveillance. Indirectly, this shows that even though there may be stark differences between the cultures on some points, there is enough agreement on some aspects of privacy to make comparisons in relation to issues such as mass surveillance. (shrink)

The present article proceeds in three parts: first, I describe George F. Hourani's approach and its continued relevance in the study of Islamic ethics. Next, I demonstrate the weaknesses of Hourani's approach, particularly his commitment to mapping Islamic thought anachronistically onto a menu of “isms” derived from modern ethical theory. To highlight the urgency of reexamining Hourani's approach and influence, I also demonstrate how scholars' continued reliance upon Hourani perpetuates the limitations of his approach in the study (...) of Islamic ethics today. Finally, I call attention to the ongoing efforts of scholars in the study of Islamic ethics to do better. I conclude that if Islamic ethics is to thrive, the field must reexamine its reliance on Hourani. (shrink)

The paper explores the role and meaning of maṣlaḥa and its possible appropriation in the field of Islamic legal and economic thought, as laid down by various medieval and contemporary Muslim scholars. Questions that are pertinent to the research are the following: how has maṣlaḥa been incorporated in legal reasoning and what kind of meaning does it convey; what type of economic reading does it presuppose; do ethics, law, and scriptural sources play equally important role as reference (...) in developing the concept in economic terms, are some of the questions that this paper will try to provide answer to. Further, as there is a tendency to believe that Islamic economic thought cannot be equated only with legal and juridical underpinnings, it is pertinent to pose a question if economic ideas have flourished independently from its legal framework. Maṣlaḥa in its capacity has always remained part and parcel of Islamic legal theory, and has been rarely addressed within the frame of economic thought; therefore a new reading is required to deal with the position of economic teachings within Islamic tradition. The paper consists of three sections, whereby the contributions made by Muslim medieval scholars on Islamic economics will be presented. The first chapter provides a historical overview of Islamic law and the concept of maṣlaḥa in relation to the field of Islamic economics, including Abu Hamid al-Ghazali’s monumental Iḥya ‘ulūm al dīn, which presents a milestone in converging Sufi ethical teachings of Islam in accordance with the legal methodology of Islamic law. The second part aims to discern and examine the economic jurisprudence and economic theory in Islam as it is understood by some of the mainstream theoreticians of Islamic studies, advocating the view that Islamic economics is inextricably related to the gist of Islamic legal reasoning. In this section the ideas of Muhammad Baqr al-Sadr will be presented as he proposes a new reading of Islamic economics as a doctrine and not a science. The third part questions Islamic legal establishment and its normativity, the claim that legal norms have always been part of the Islamic economic reasoning. This claim rests upon the idea that Islamic legal patterns were also socially constructed, including some aspects of Islamic economic reasoning. Concluding remarks will draw upon the idea that despite the fact that Islamic legal and economic literature are based upon the religious scriptures of Islam, the Qur’an and Tradition, it is more appropriate to claim that they rest upon the ethical cosmology that surpasses purely theological concerns. (shrink)

PurposeThe paper aims to introduce the Islamic “legal system of Shari'ah laws and ethics” and its process of resolving ethical quandaries as applied in the field of information ethics.Design/methodology/approachThe paper first introduces some of the intricacy of the Islamic Shari'ah laws and ethics and then to reason its applicability in the field of IE, a scenario is discussed to illustrate how Islamic legal maxims maybe implemented to arrive at a moral judgment.FindingsThe discussed scenario shows glimpses (...) of the Shari'ah laws and reasoning processes of the Islamic ethical methodology for deriving moral judgment as used in the Muslim world to bring benefits and repel harms. The system respects both collective and individual's perspectives and can be conceived as being a synthesis between deontological, consequentialist and virtue ethics theories.Practical implicationsThe paper is sufficient to give the reader a feel for its potential to encourage further research in the area of resolving ethical issues, specifically for those who are calling for universal ethical theories to avoid moral imperialism.Originality/valueEthical researchers have gone back in history as far as Aristotle and Descartes to address ethical issues arising from the development and application of information and computer technologies. One area of ethics rarely touched by ethical theorists is the religious laws and ethics of Islam. The paper introduces Islam and its sources of knowledge, which are the foundation for a large set of legal maxims used to govern ethical decisions. (shrink)

In this article, the meaning of concept of sharʿī science gained in the conception of education, which was established in Islamic civilization, was studied. The main problem of the research is to evaluate the idea of education in Islamic Civilization, which is closely related to the concept of sharʿī science, with a false perception that it consists entirely of religious education. The beginning of Islamic Civilization is traced back to descent of the Qur'an. The conception of education (...) that started to emerge after this period is based on the understanding of the Qur'an and hadiths at first. In later times, a wide variety of fields, such as language, literature, logic, wisdom, riyāzat, nature, and astronomy, have been included in the concept of education to encompass the whole existence of the entity. In the following centuries, these fields, which were included in the course curriculum of the madrasahs, were examined in detail in the works of classification of sciences. Therefore, the false perception needs to be reconsidered. For this reason, the article focuses on how the concept of sharʿī science is defined. Historical data analysis method was used to solve the problem. The claim of the article is that the concept of shar′i science has wide perspective to cover the world of meaning, mind and essence of man. As a result, this article, it was determined that the concept of sharʿī science has a meaning to cover the majority of information fields that are subject to instruction in our educational conception.Summary: The formation of the conception of education in Islamic civilization has emerged in the long term through a scientific process. During this time, a rich curriculum on the concept of education was shaped. The sciences that form the curriculum have been diversified in later periods compared to the early periods of Islam. With the advent of the different sciences, which provided this diversification and which were not at first, all the existing sciences were classified according to different perspectives by the ulama (muslim scholars). In the classifications, which have important contributions to the conception of education, the sciences were tried to be introduced and their position in the education life was tried to be explained. The sciences classified have not been dealt with against each other but rather to complement each other in different ways. The distinction of sciences in classification; different approaches such as linguistically, religious, secular, mental, transportation, philosophical and sharʿī have been developed.The concept of sharʿī science, which can be expressed as a general definition of the sciences, is given in almost all of the works related to the classification of sciences, even under the name or different titles. When we look at the classification, it is seen that sharʿī sciences are handled in four different approaches. As the first approach, the sharʿī sciences are among the main elements of main division in the classification. Here, the sharʿī sciences, in general, with the linguistic sciences and mental sciences were included in the top title. In the second approach, there are works in their classification that do not include the sharʿī sciences and the distinction between it. In addition, these works collect the sciences within this scope under other scientific compositions or other names. In the third approach, among the works that give information about the general of the sciences, there are those who mentioned all together without classifying these sciences and others. In the last approach, the sharʿī sciences are seen as the upper description of the knowledge fields that are included in the teaching, which covers the majority of the other sciences except for the linguistic sciences.The approaches presented in the classification of sciences indicate the diversity of the issue. In order to have better understanding of the issue, it is useful to look closely at the meaning of the concept of sharʿī sciences. At this point, three definitions of 2nd, 4th and 12th centuries are given respectively. Firstly, for Jābir b. Hayyān sharʿī science is the most useful politics in terms of religion and the world, because it contains the benefits of the world's interests after death.Secondly, al-Ghazali (d. 505/1111) describes the sharʿī science as the knowledge learned from Şārī ʿ and prophets, but not by the experience and hearing. According to this, the sharʿī science is defined as the knowledge of the sunnah that only gives information about revelation. The information fields outside this definition are also considered as the sciences, which are instrumental in reaching to sharʿī science.The perspective of the third definition of sharʿī science is given by Saçaklızāde (d. 1145/1732). He lists the three definitions made before the time of his life from the specific (hās) to the general (ām). Saçaklızāde gave the aforementioned definition of al-Ghazali in the first sense of the concept of sharʿī science. He points out that the meaning given here is allocated. The second definition belongs to Molla Husraw (d. 885/1480). According to him, the sharʿī science is the sciences that can be reached through the sciences of the Şārīʿ. In other words, it is the sciences that are not used except for obtaining the sciences obtained from Şārīʿ itself. This meaning is a bit more extensive since there are no records as described in al-Ghazali. This definition is also included in the sciences benefited from it. Although it is not the first, there is usūl-i fiqh (Islamic legal theory) within this meaning.In the third definition, sharʿī science is the sciences that form the basis for things arising from Şārīʿ or originating from Şārīʿ. This definition belongs to Ibn Hajar el-Haytamī. He did not consider the partial allocation of the second meaning as given above, and included all the instrument sciences in the definition of sharʿī science. Based on the definitions he gave, three sharʿī science approaches made before the time he lived were listed from specific to general. Thus, in a sense, he depicts the general shape of the sharʿī science perspective. With the approach to generalization, we can say that a sharʿī science perspective that encompasses the majority of the fields involved in education is developing. In the third meaning of sharʿī science, it is seen that the majority of the fields of knowledge in education and training are gathered under one roof. The most important factor gathering the sciences together is the effort to understand the purpose of Şārīʿ, who owns the whole area of existence. The fields of knowledge and sciences needed to achieve this aim can be included in the definition of sharʿī science. The effort to understand the purpose of Şārīʿ is also at the center of the idea of Islamic education. Since there are various dimensions of being, each step taken to understand and learn them is directed in a way to Şārīʿ itself. Whether it is language and literary sciences or other sciences, such as mathematics, physics and philosophies, the aim is to recognize and understand Şārīʿ for the collection of things that fall within the scope of all educational activities. With sharʿī science approach, teaching the whole of the area of existence owned by Allah is possible within the concept of education. In the works written for the education curriculum, it is seen that the perspective covering the majority of the sciences in the definition of third sharʿī science is preserved. First of all, the meaning integrity of the sharʿī science concept has been determined. In the definitions of three different periods given here, it is seen that the approach to the sciences, which are the subject of instruction in education is not exclusive but inclusive. Especially because of the width in the third sense, the majority of the instrument sciences and mental science fields in the curriculum are included in the definition of sharʿī science. (shrink)

A number of recently published studies by reformist-minded Muslim scholars have both questioned the normative nature of and emphasized the need to rethink some of the fundamental assumptions and interpretational models governing traditional Islamic legal theories and ethics. As part of this process they have emphasized the need to develop novel Islamic hermeneutics. One major element in this emergence of novel Islamic hermeneutics is the production of an increased number of what I term ‘gender equality affirmative (...) scholarship on Islam’. What is particularly interesting, if not intriguing, from the perspective of the author of this article is that the scholarship on gender equality affirmative interpretations of Islam is theorized by reformist-minded Muslim male scholars at historically unprecedented levels which is what this study seeks to highlight. This article examines the arguments employed by three prominent contemporary Muslim male reformist scholars, both Shī’ī and Sunnī, in developing gender equality affirmative interpretations of Islam – Nasr Abu Zayd, Mohsen Kadivar, and Khaled Abou El Fadl. The focus on male scholars in this article is intentional and seeks to highlight the most fundamental point and indeed the raison d’être behind it, namely to underscore the historically unprecedented support Muslim male scholars are providing to the development of feminist interpretations of Islam. (shrink)

The United Nations Educational, Scientific and Cultural Organization's Declaration on Bioethics and Human Rights asserts that governments are morally obliged to promote health and to provide access to quality healthcare, essential medicines and adequate nutrition and water to all members of society. According to UNESCO, this obligation is grounded in a moral commitment to promoting fundamental human rights and emerges from the principle of social responsibility. Yet in an era of ethical pluralism and contentions over the universality of human rights (...) conventions, the extent to which the UNESCO Declaration can motivate behaviors and policies rests, at least in part, upon accepting the moral arguments it makes. In this essay I reflect on a state's moral obligation to provide healthcare from the perspective of Islamic moral theology and law. I examine how Islamic ethico-legal conceptual analogues for human rights and communal responsibility, ḥuqūq al-’ibād and farḍ al-kifāyah and other related constructs might be used to advance a moral argument for healthcare provision by the state. Moving from theory to application, I next illustrate how notions of human rights and social responsibility were used by Muslim stakeholders to buttress moral arguments to support American healthcare reform. In this way, the paper advance discourses on a universal bioethics and common morality by bringing into view the concordances and discordances between Islamic ethico-legal constructs and moral arguments advanced by transnational health policy advocates. It also provides insight into applied Islamic bioethics by demonstrating how Islamic ethico-legal values might inform the discursive outputs of Muslim organizations. (shrink)

Muslims are a marginal minority in Poland, but research shows that they are often subject to negative perceptions and hostility from the majority. Orientalist stereotypes about Islam and the people associated with it are widespread and often reproduced in the media. Research from North America and the European Court of Human Rights suggests that such prejudices can affect the adjudication of cases involving Muslims. It may be presumed that Poland is no exception to that, and this assumption was the starting (...) point for our empirical study. To date, there have been no studies on the perception of Muslims and Islam in the Polish legal system. This article presents the results of a qualitative thematic analysis of 57 judicial opinions issued by the common courts in Poland and published online, in which Islam or being Muslim was mentioned. The cases were categorised and texts of the judicial opinions closely analysed (with computer-assisted qualitative data analysis software) to identify recurring themes. The findings of this first exploratory study show that stereotypical representations and the “‘Othering” of Muslims do indeed occur in Polish courts, with some judges repeating Orientalist tropes that have become normalised in Polish society. (shrink)

Indonesia's Islamic organizations sustain the country's thriving civil society, democracy, and reputation for tolerance amid diversity. Yet scholars poorly understand how these organizations envision the accommodation of religious difference. What does tolerance mean to the world's largest Islamic organizations? What are the implications for democracy in Indonesia and the broader Muslim world? Jeremy Menchik argues that answering these questions requires decoupling tolerance from liberalism and investigating the historical and political conditions that engender democratic values. Drawing on archival documents, (...) ethnographic observation, comparative political theory, and an original survey, Islam and Democracy in Indonesia demonstrates that Indonesia's Muslim leaders favor a democracy in which individual rights and group-differentiated rights converge within a system of legal pluralism, a vision at odds with American-style secular government but common in Africa, Asia and Eastern Europe. (shrink)

Medieval Muslim scholars were challenged with squaring their conceptions of prophetic infallibility with reports that Muhammad disobeyed revelatory commands from God. The manner in which they rehabilitated the prophetic image in these cases had corresponding repercussions in the fields of jurisprudence, theology, and legal theory. The present article uses the case of Q. 8:67 to demonstrate the intertwined nature of the Islamic sciences and the stakes involved when delimiting the prophetic ability to err and/or disobey God.

After the death of Prophet Muhammad (p.b.u.h), one of the most significant debated topics of Muslims was the institution of caliphate. This institution caused crucial argumentations through the ages from Abu Bakr to Abd-al-Majid who was the hundreth khalifa. Some prominent issues in that regard as follows: How khalifa comes to power, who becomes khalifa, whether he is descended from Quraysh or not, which kind of traits khalifa should have, and how khalifa should behave in certain circumstances. While these arguments (...) were going on, caliphate was maintained based on the reign under some certain dynasties’ responsibilities after the Rashidun (rightly guided) Caliphs. Umayyads, Abbasids and Ottoman Dynasties were the most well-known ones of these dynasties. Throughout history, even though caliphate passed in one another’s hands among aforementioned dynasties, none of them did attempt to abolish this position. However, Turkish Muslims who became defeated with European occupation of non-western territories decided to abolish caliphate for the sake of modernization activities within the period of transition from imperialism to nation state. This decision brought about a trauma, which was much more critical than former argumentation around the position in Muslim world. Many congresses were organized in Islamic world in order to recover from this trauma. While this kind of quests were continuing, Muhammad Hamīdullah proposed “High Caliphate Council” in relation to rearrangement of caliphate in accordance with the conditions of Islamic countries. This proposal offers an applicable model to today’s modern nation states by establishing unity among them and leaving aside their conflicts and differences. This proposal offers a resolution of much-discussed matters of the position within the limits of principals. It also draws attention by showing a possibility of Islamic union in contemporary Islamic thought. Summary: The matters of who undertakes the management of societies, how rulers come to power and in what manners the rulers maintain the management have been discussed throughout history. It is seen that rulers adopted kingdom as regime before the period of the Prophet Muhammad (p.b.u.h). There was also two-person management. The discussions about this matter were also seen around khalifas who were the rulers of Muslims after the death of Prophet Muhammad (p.b.u.h). Some debated issues in that regards as follows: Who becomes khalifa, how he is elected, which traits he should possess, and so on. Caliphate continued its existence despite the discussions until the first quarter of the 14th Hijra era. Abolition of caliphate was a trauma for Muslims undoubtedly. From Anatolia to Egypt and from India to the Balkans, many attempts were carried out to recover from this trauma. However, this matter was oversimplified in the conditions of that period since it became a topic which was hushed over in just congresses and conventions. One of the people who wrote on this topic, which maintains its vitality even today was Muhammad Hamīdullah. He was an important Islamic scholar, a lawyer and a historian in Indian geography. Hamīdullah did deal caliphate by indicating its history broadly. The distinctive feature of Hamīdullah from others who wrote on this topic is that he also presented a considerable offer to solve the matter. In this sense, Hamīdullah experienced the trauma in his own life as all muslims did it with the abolition of caliphate. Hence he mentioned this matter in his writings in the mood of care and dignity of a scientist and also in feeling of a heartbroken muslim. Hamīdullah made clear that the method of election of the ruler differed throughout history. Indeed, the verses of Holy Qur’ān, the applications of the Prophet Muhammad (p.b.u.h) and the differences of Four Great Chaliphs on coming to power testified this claim. According to Hamīdullah, it is quite normal that the method of regime can vary according to the conditions of societies. He recommended acting based on timeless rules rather than the changes that vary according to conditions and places. He also stated that the regime which Islam approves is a combination of kingdom and democracy in his lines dealing with methods of regime. To him, kingdom is the method of regime of empire. Empire is the regime in which various nationalities live together with all their differences and interact with one another intensely and in which the rulers rule over wide borders. On the other hand, Islamic world lost its edges of empire, changed its regime and divided to nation states after the decline of the Ottoman Empire and Mughal Empire which were established by Muslims. On the contrary, westerners attempted to establish a head empire several times after building nation states in Europe. Some of them are UN, NATO, EU, to name but a few. In our opinion, in the transition process of Muslim rulers from empire to nation state, Hamīdullah made an offer to accomodate Islamic law in state law, Islamic politic and administrative principles in politics and administration practices, Islamic education system in education system, and principles of Islamic economics in economic decisions of government using the Prophet Muhammed’s life as a base. He also explained to Muslims that the method of regime can be changed and the essential matter is to apply Islamic management principles in such a new situation. He played a role in clearing the way for Muslims by indicating that the method of Islamic regime can be changed according to conditions but the principles of Islam are unalterable. To the writer of these lines, Hamīdullah intimates that it is not so true to stick to the form of the process in Muslim territories in which a compulsory transition from the empires or multinational social structures to the nation state structures have been experienced for the last two ages. However, the first matter to dwell on should be whether the ruler of the government behaves in accoradance with the principles of Islam or not. To Hamīdullah, the second matter is that even though Muslim countries had to enter in the process of becoming nation states, Muslims should make an effort to establish supra-state associations as required by Islam. In this respect, Hamīdullah’s proposal is “High Caliphate Council”. This council is a considerable offer presented to Muslim countries in the age when a universal caliphate is not possible and Muslims head towards a unified state form all over the world. Today, this offer recommends countries of which great majority is Muslims and in which Muslims are minority to meet on a common ground rather than conflict because of differences among them. The High Caliphate Council is an institute consists of presidents or hereditary administrators as leading and regular members and so it avoids regional competition. It is established by Muslim presidents who shares the chair alternately. Based on this, all Muslim presidents play a role altogether in this council without need to be Sunni, Shia, or from Quraysh. The High Caliphate Council is a reflection of a dream, which started a century and half a century ago but is required more today. It is also a reflection of the discourse of “Islamic Union” in Contemporary Islamic Thought. The Caliphate Council and International Islamic Legists’ Association, which is the first practical step of the council can be seen as the theory of a new world order based on the unity principle of Islam. Hamīdullah does not consider this order not only in the range of belief but also with the aim of institutionalizing ‘ijmā (consensus of Islamic legists) and qiyās(legal analogy). He stated that International Islamic Legists’ Association, which is a scientific institution could not be established beforetime by Muslims spread on three continents due to lacking of communication among them. However, thanks to today’s possibilities, the establishment of such association is easier today. Hamīdullah found dynamic solutions such these two institutions for the realization of caliphate, which is a religious necessity. He marked an era for Muslims in the period of time when they are on a quest. (shrink)

Considered an iconic symbol of indigenous legal heritage, Islamic law is adopted nowadays in whole or in part in the legal systems of the Muslim world and is also of significance in Muslim-minority European countries, where it typically finds its niche in civil and financial domains. This article sets out to investigate the norms of translating Islamic family law discourse using a mixed methods approach based on ‘qualitising’ quantitative data, i.e., an approach in which quantitative data (...) are interpreted qualitatively. Drawing on a self-built monolingual English corpus of over three million words covering diverse genres, the analysis will harness the power of corpus processing to enable the study of ten iconic lexical profiles (individual concepts/conceptual systems and their corresponding Arabic and English terms) that are specific to Islamic family law. Profile-based correspondence is also employed to investigate the probability of lexical variation in expressing a conceptual category—a profile refers to a set of synonymous variants or linguistic labels that can be used to designate the same concept. The corpus analysis seeks to identify the key loanwords that represent cultural icons featured in the English-language discourse of Islamic family law and to explore the different mechanisms used to render shariʿa-based concepts. The aim is to investigate concomitant translation norms based on linguistic frequency in the corpus and to interpret ideological implications with reference to the theory of translation norms, which postulates that translation decision making is subject to norms dictated by extralinguistic factors (e.g., socio-political or ideological). The study finds that Islamic family law relies significantly on Arabic loanwords (constructing an ‘Islamgish’ discourse) to maintain shariʿa-based linguistic heritage, which can be seen as a kind of ‘working for one’s own good’. Thus, what is at play here is the ethics of self-interest, which is very typical of postcolonial agendas. (shrink)

This paper is intended to elaborate the anthropocentric paradigm in the study of Islamic law which is done for two reasons. The first is the increasing trend of theocentricism within various puritan communities. This trend rejects the contextualization of Islamic law and has the potential to produce radical movements in the name of religion. The second is that, Islamic law studies is still rarely associated with the issues of legal paradigms, even though they are considered as (...) the foundation in the establishment of Islamic law. Thus, this paper is written as an attempt to make the prophetic social science paradigma an analytical tool for puritans’ Islamic law epistemology. This study reveals that the epistemological demystification is very important for the study of contemporary Islamic law. There are two steps in carrying out epistemological demystification: the first is the transformation of the basic structure of Islamic law. This transformation requires a shifting issue from theocentric to the anthropocentrism. The transformative theoanthropocentric paradigm as the basic legal structure has the capability to contextualize Islamic law which is not only relevant to the Muslim community, but also to the community as a whole. The second is the development of a theoretical framework. Concerning with this, Kuntowijoyo offers analytic-synthetic theories which accommodate a demystified vision as a link to a transformative theological foundation. (shrink)

The legal-ethical dynamism in Islamic law which allows it to respond to the challenges of modernity is said to reside in the institution of ijtihād (independent legal thinking and hermeneutics). However, jurists like Mohsen Kadivar and Ayatollah Faḍlalla have argued that the “traditional ijtihād” paradigm has reached its limits of flexibility as it allows for only minor adaptations and lacks a rigorous methodology because of its reliance on vague and highly subjective juridical devices such as public welfare (...) (maṣlaḥa), imperative necessity (ḍarūra), emergency (iḍtirār), need (ḥāja), averting difficulty (‘usr) and distress (ḥaraj), hardship (mashaqqa), and harm (ḍarar) without interrogating the fundamentals (uṣūl) of ijtihād. In contrast, in the “foundational ijtihād” model theology, ethics, intellect, epistemology, linguistics, hermeneutics, modern sciences, history, cosmology, anthropology, and the sources of Islamic legal theory (uṣūl al-fiqh) interact with one another to obtain resolutions that are just and non-discriminatory. (shrink)

Background Advocates for a regulated system to facilitate kidney donation between unrelated donor-recipient pairs argue that monetary compensation encourages people to donate vital organs that save the lives of patients with end-stage organ failure. Scholars support compensating donors as a form of reciprocity. This study aims to assess the compensation system for the unrelated kidney donation program in the Islamic Republic of Iran, with a particular focus on the implications of Islam on organ donation and organ sales. Methods This (...) study reviews secondary documents for philosophical argumentation and ethical analysis of human organ donation and sale for transplantation. Results and discussion According to Islamic law, organ donation is an act of _sadaqatul jariyah,_ and individuals are permitted to donate organs with the intention of saving lives. The commercialization of humans as organ sellers and buyers is contrary to the Islamic legal maxim _eethaar_, undermining donors of ‘selfless’ or ‘altruistic’ motivations. Such an act should be considered immoral, and the practice should not be introduced into other countries for the sake of protecting human dignity, integrity, solidarity, and respect. I, therefore, argue that Iran’s unrelated kidney donation program not only disregards the position of the Islamic religion with respect to the provision or receipt of monetary benefits for human kidneys for transplantation but that it also misinterprets the Islamic legal proscription of the sale of human organs. I also argue that the implementation of Iran’s unrelated kidney donor transplantation program is unethical and immoral in that potential donors and recipients engage in a bargaining process akin to that which sellers and buyers regularly face in regulated commodity exchange markets. Conversely, I suggest that a modest fixed monetary remuneration as a gift be provided to a donor as a reward for their altruistic organ donation, which is permissible by Islamic scholars. This may remove the need to bargain for increased or decreased values of payment in exchange for the organ, as well as the transactional nature of ‘buyer and seller’, ensuring the philosophy of ‘donor and recipient’ is maintained. Conclusions Offering a fixed modest monetary incentive to organ donors would serve to increase organ supply while protecting donors’ health and reducing human suffering without legalizing the human organ trade. (shrink)

A Theory of Universal Democracy empowers cultures and communities across the world to custom design democracy in consonance with their traditional values. For example, the book makes concrete proposals for Muslim countries to democratize their constitutions without accepting Western values and without violating the principles of Islamic law. More importantly, Universal Democracy further develops the idea of Free State, which the author first presented in his previous book, The Extinction of Nation-States (Kluwer, 1996). The proposed fusion of Universal (...) Democracy and Free State is designed to revolutionize the classical theory of government and to offer a new paradigm that accommodates both universality and uniqueness. Scholars, teachers and students of international law, constitutional law, legal theory, and Islamic law will find this book a source of valuable ideas. (shrink)

The release of over 6,000 genetically modified mosquitoes (GMM) into uninhabited Malaysian forests in 2010 was a frantic step on the part of the Malaysian government to combat the spread of dengue fever. The field trial was designed to control and reduce the dengue vector by producing offspring that die in the early developmental stage, thus decreasing the local Aedes aegypti population below the dengue transmission threshold. However, the GMM trials were discontinued in Malaysia despite being technologically feasible. The lack (...) of systematic studies in terms of cost-benefit analysis, questionable research efficacy and safety-related concerns might have contributed to the termination of the field trial. Hence, this research aims to evaluate the feasibility of GMM release in Malaysia by using a holistic approach based on an Islamic ethical-legal assessment under the maslahah-mafsadah (benefit-risk) concept. Three main strategies based on the maslahah-mafsadah concept approach have been applied: 1) an evidence-based approach, 2) an impact-based approach and, 3) a priority approach. The analysis concluded that GMM could be categorised as zanniyyah (probable). GMM is a promising alternative for dengue control, but many issues must be addressed before its widespread adoption. (shrink)

One of the epistemological results emerging from this initial study, is that the different forms of co-relational inference, known in the Islamic jurisprudence as qiyās represent an innovative and sophisticated form of reasoning that not only provide new epistemological insights of legal reasoning in general but they also furnish a fine-grained pattern for parallel reasoning that can be deployed in a wide range of problem-solving contexts and that does not seem to reduce to the standard forms of analogical (...) argumentation studied in contemporary philosophy of science. More specifically the main claim is that a dialectical framework provides the right instrument to stress two of the most salient features of this form of inference: (1) it's heuristic nature and (2) the dynamics underlying the meaning-explanation of the terms involved. Both display what we take to be the main epistemological idea behind the qiyās, namely: the open texture of the meaning of normative statements. To put it more generally, the notion of co-relational inference suggests that every form of parallel reasoning based on meaning presupposes that the concept of meaning involved is open to contextual changes. Moreover the latter indicates that the whole process deployed is intrinsically dialectic. (shrink)

This article examines developments in ‘Islamic feminism’, and offers a critique of feminist theories, which construct it as an authentic and indigenous emancipatory alternative to secular feminisms. Focusing on Iranian theocracy, I argue that the Islamization of gender relations has created an oppressive patriarchy that cannot be replaced through legal reforms. While many women in Iran resist this religious and patriarchal regime, and an increasing number of Iranian intellectuals and activists, including Islamists, call for the separation of state (...) and religion, feminists of a cultural relativist and postmodernist persuasion do not acknowledge the failure of the Islamic project. I argue that western feminist theory, in spite of its advances, is in a state of crisis since (a) it is challenged by the continuation of patriarchal domination in the West in the wake of legal equality between genders, (b) suspicious of the universality of patriarchy, it overlooks oppressive gender relations in non-western societies and (c) rejecting Eurocentrism and racism, it endorses the fragmentation of women of the world into religious, national, ethnic, racial and cultural entities with particularist agendas. (shrink)