Imam Syafi'i is the leader of Syafi'ism in Sunni Islam law, who wrote Ar-Risalah as the first book on Islamic jurisprudence (Islamic philosophy of law). Majority of Muslim in Indonesia is the follower of his thought. Therefore, his book is translated into bahasa Indonesia and commented philosophically.

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)

Satr al-awrah (Hijab /veiling) is one of the obligatory provisions for men and women in Islam. Satr al-awrah, as a religious/jurisprudential term, means covering the parts of the body (awrah) that should be covered by religion. Islamic jurisprudents have disagreed on whether satr al-awrah is a condition of validity for prayer. There are two basic approaches to this issue, one of which belongs to the public (jumhūr including the Hanafī, Shafiī and Hanbalī schools) and the other to the Mālikīs. (...) According to the majority (jumhūr), satr al-awrah is a validity condition of the prayer. Therefore, a prayer performed without fulfilling the satr al-awrah condition is not valid. A prayer performed in this way must be re-performed absolutely within or outside of time. There are two approaches in the Mālikī school regarding whether the satr al-awrah is a condition for the validity of the prayer. The first approach is (partly) the same as the jumhūr. According to the second approach (without any distinction between prayer and outside the prayer), satr al-awrah is a general obligation in Islam and is not a valid condition for prayer.According to the Mālikīs who accept this second view, it is sunnah to comply with the satr al-awrah condition in prayer. On the other hand, in the Mālikī school, awrah is divided into two as ʿawrah mughallaẓa and ʿawrah mukhaffafa in terms of its effect on the validity of prayer. The disagreement about whether the satr al-awrah is a condition of validity for the prayer is related to the ʿawrah mughallaẓa. On the other hand, there is an agreement that the ʿawrah mukhaffafa is not a condition for the validity of the prayer. The disagreement in the classical fiqh doctrine about whether the satr al-awrah is a condition for the validity of the prayer has some jurisprudential consequences. As a matter of fact, according to the majority, whether it is ʿawrah mughallaẓa or mukhaffafa, a prayer performed with an uncovered awrah is not valid and must be re-performed absolutely. In the Mālikī school, there are different opinions depending on whether it is ʿawrah mughallaẓa or mukhaffafa. If the place uncovered on the body is ʿawrah mughallaẓa; According to those who accept the satr al-awrah as a condition for the validity of the prayer, the prayer is not valid and must be re-performed absolutely. After the time has passed, the prayer does not have to be repeated. If the place uncovered on the body is ʿawrah mukhaffafa, according to all Mālikīs, unanimously the prayer is valid. Although it is recommended to reperformed it in time, it is not required to be returned after the time has passed. The following can be said about the practical examples of the disagreement in the classical fiqh doctrine regarding whether the satr al-awrah is a condition for the validity of the prayer, especially in terms of ʿawrah mukhaffafa: According to Mālikīs, who do not accept the validity of the satr al-awrah for prayer, it is valid for women to pray with their heads down, below the knees and with their arms uncovered. Again, according to them, it is valid for men to perform prayers with their thighs/hips (fakhz) uncovered, since it is considered one of the private parts. (shrink)

Muhammad Arsyad Al-Banjari who lived from 1710 to 1812 in Borneo, Indonesia, applied a model of integrating uses of the Banjarese tradition into Islamic Jurisprudence based on a dialectical constitution of qiyās, the legal argumentation theory for parallel reasoning and analogy, he learned from the Shāfi‘ī-school of jurisprudence (uṣūl al-fiqh). Our paper focuses in the model of integration proposed and practiced by Al-Banjari, a rational debate grounded on a dynamic view on legal systems. We will illustrate the method with (...) the help of two different kinds of qiyās deployed by Al-Banjari in order to argue for the rejection of some traditional Banjarese offering-rituals for avoiding disease or calamities (manyanggar and mambuang pasilih), and for the acceptance of the use of consuming the traditional drink called lahang made of the juice of sugar-palm. As our dialogical reconstruction shows, the development of the debates, particularly the first one, is quite sophisticated, with a Banjarese opponent that does not surrender easily to the rejection of his use of those rituals. (shrink)

This monograph proposes a new way of studying the different forms of correlational inference, known in the Islamic jurisprudence as qiyās. According to the authors’ view, qiyās represents an innovative and sophisticated form of dialectical reasoning that not only provides new epistemological insights into legal argumentation in general but also furnishes a fine-grained pattern for parallel reasoning which can be deployed in a wide range of problem-solving contexts and does not seem to reduce to the standard forms of analogical (...) reasoning studied in contemporary philosophy of science and argumentation theory. After an overview of the emergence of qiyās and of the work of al-Shīrāzī penned by Soufi Youcef, the authors discuss al-Shīrāzī’s classification of correlational inferences of the occasioning factor. The second part of the volume deliberates on the system of correlational inferences by indication and resemblance. The third part develops the main theoretical background of the authors’ work, namely, the dialogical approach to Martin-Löf's Constructive Type Theory. The authors present this in a general form and independently of adaptations deployed in parts I and II. Part III also includes an appendix on the relevant notions of Constructive Type Theory, which has been extracted from an overview written by Ansten Klev. The book concludes with some brief remarks on contemporary approaches to analogy in Common and Civil Law and also to parallel reasoning in general. (shrink)

The concept of family economy in Islam has been addressed under various issues in classical sources though not extensively discussed in the classical literature. Islamic jurisprudence generally embraces pragmatical approach and pays attention to the needs of society. It is evident that economic relationship within the family is not addressed under a single heading in classical sources, but rather evaluated under numerous headings. From this perspective, it can be observed that each individual within the family concept enjoys distinct economic (...) rights and responsibilities. The social, ethical and financial responsibilities in the family are carried out within the framework of maintenance. In this respect, the Islamic legal system approaches the concept of family economy with a balanced view between income and expenditure, lawful and unlawful, and blessing and burden, and does not evaluate the issue purely as an economic activity. However, in contemporary times, the term family economy is understood more in terms of the economic and legal statues of the individuals within the family, such as their handling and responsibilities concerning acquired properties and the nature and manner of property distribution. This approach significantly diverges from the individual and social responsibilities entailed by property ownership in Islamic law. In Islam, the possession of individual economic rights and freedoms does not imply that one has no responsibilities towards others and cannot act irresponsibly. Based on this fundamental paradigm difference, this article aims to analyze the concept of family economy from the standpoint of Islamic law, discussing what it is and is not. The study has revealed that, even today, economic interests and activities within the family sometimes lead to conflicts, causing the parties to abandon their ethical and religious responsibilities in favor of establishing definite lines solely based on legal grounds. This, in turn, significantly undermines the essence and continuity of being and remaining a family. Furthermore, when examining writings that attempt to explain the economic status of the family according to Islamic law, it is evident that the provisions found in classical fiqh books, which were arranged according to the human, Islamic, and customary structure of that period and were quite functional, are repeated without considering the contemporary societal structure and changing human character. Although these provisions are accurate and effective within their own context, they are deemed inapplicable by modern individuals, rendering them ineffective. The appropriate way to address this issue can be to emphasize that the rules concerning family economy in classical fiqh are not merely ethical and conscientious, but that legal intervention will ensue if they are not adhered to. The fundamental assertion of this article is based on this premise: the concept of family economy inherently exists in Islamic law, imposes various responsibilities on the parties, is structured on a balance of blessings and burdens, and entails legal, ethical and religious responsibilities. (shrink)

Our study aimed to investigate what Muslim families in England have the opportunity to have religious education for their children and to examine the institutions or structures that provide Islamic education opportunities. Document analysis as a qualitative method was adopted in our study. Academic books and articles related to the subject, statistical records, various re-ports provided by the state and private institutions, school curricula, school inspection reports, and law articles, and some court decisions constitute the main data sources. Maximum (...) diversi-ty sampling from the purposeful sampling types was used in determining the schools that were examined their Islamic curriculum, and it was tried to include as many different curriculum examples as possible. The fact that religious lessons are compulsory in schools in England and that this lesson is taught with a multicultural approach can be seen as an opportunity. On the other hand, there is a flexible education system in England. Muslim faith schools, supplementary schools (madrasa, maktab, and mosque school), and the home-schooling system are places and structures where Islamic education is carried out within the scope of formal and informal education. It is seen that Muslim faith schools are allowed to be opened as 'voluntary aided schools' by defining their distinctive religious characters as Muslim. The number of ‘state-funded Muslim schools’ is very limited, but their existence carries symbolic weight as a recognition of the Muslim com-munity’s right to establish such schools. It is understood that Muslim faith schools were opened mostly in the category of ‘independent schools’. Although there are various discussions about it, it is also important for Muslims to have informal religious education, in addition to formal education; it is allowed to open schools that offer Islamic education under the name of madrasa, maktab or mosque school. Families who send their children to the community schools because of the insufficient number of Muslim faith schools send their children to madāris (singular: madrasa), makātib (singular: maktab), or mosque schools which are called as ‘supplementary schools’. Social and moral values are taught here, including the teaching of the Qur'an, as well as sīrah (the biography of the Prophet), fiqh (jurisprudence), and Islamic history. It was understood that families who want to protect their children from the unhealthy envi-ronment of the school have the right to prefer home education, since the school is not compul-sory. In this sense, home-schooling can be considered as another opportunity for Muslim fami-lies to have their children Islamic Education. In addition to all these opportunities, the lack of a standard in these educational structures, the unqualified teachers, the inadequacy of curriculum development studies, and as a result, lack of qualified teaching materials are important problems. Economic limitations emerge as the first obstacle to increase the number of Muslim faith schools and to improve educational quali-ty. This situation threatens the quality of education by giving rise to poor buildings, insufficient resources, insufficient health and safety standards, and inexperienced management. Another threat to the quality of education is that teachers for independent schools do not have to have Qualified Teacher Status (QTS). While negative perceptions about Muslim schools have been identified as another challenge, it is expressed in various sources that Muslim students are frequently exposed to Islamophobia in various ways in public schools. Linking mosques and Islamic education institutions to radicalization and making them a subject of discussion is another noteworthy issue. Although there is no evidence of the relationship between Muslim schools and terrorist acts in England, Muslim schools are subjected to suspicions of being po-tential breeding grounds for future extremists. It seems necessary to take some actions for madrasahs who do not want to be under the con-trol of the state to reach certain standards and increase the quality of education. For example, Muslim supplementary schools should be united under the same roof of an association like The Association of Muslim Schools. This will help to attain certain standards, to increase the quality of education, and to create opportunities for various cooperation and sharing of experiences. Also, it should not be seen enough that the teachers in the madāris only have religious educa-tion, and their pedagogical competencies should be improved by subjecting them to various educational programs. (shrink)

Once I’ve heard a joke about legal academia, and given that this was a very good joke, it was also very close to reality. This is how it went: ‘well, if you want to be successful in the Anglo-Ameri...

This book is designed for use in courses in law schools and university departments of philosophy. It can serve as a text for basic and advanced courses and seminars. Readings include excerpts of classic works of Aristotle, Aquinas, Locke, Hobbes, Kant, Bentham, and Austin. Provided also are excerpts from standard works of twentieth century philosophers. The book explores current legal discourse with readings on topics such as sociobiology, Islamic law, the legal process school, legal feminism, critical legal studies, (...) intersectionality and gender identity theories, law and economics, and new private law theories. It reprints leading cases on natural rights/human rights and readings from online blogs, op-ed essays, news stories and internet publications, as well as drawing on literary treatment of topics relevant to legal philosophy. (shrink)

The first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and legal scholar at all levels. The work is divided in two parts. (...) The theoretical part, consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes, accounts for the development of legal thought from ancient Greek times through the twentieth century. The entire set will be completed with an index. Volume 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics 2nd revised edition, edited by Fred D. Miller, Jr. and Carrie-Ann Biondi Volume 6 is the first of the Treatise’s historical volumes and is dedicated to the philosophers’ philosophy of law from ancient Greece to the 16th century. The volume thus begins with the dawning of legal philosophy in Greek and Roman philosophical thought and then covers the birth and development of European medieval legal philosophy, the influence of Judaism and the Islamic philosophers, the revival of Roman and Christian canon law, and the rise of scholastic philosophy in the late Middle Ages, which paved the way for early-modern Western legal philosophy. This second, revised edition comes with an entirely new chapter devoted to the later Scholastics and an epilogue on the legacy of ancient and medieval thought for modern legal philosophy, as well as with updated references and indexes. (shrink)

It is widely acknowledged that two methods of writing have emerged in the history of usūl literature: Juristic method (usūl al-fuqahā) and theological method (usūl al-mutakallimīn). Although there are some attempts to determine the typical features of these methods, we do not have a comprehensive explanation regarding the criteria of this distinction, the motivation behind it and the period when these methods have become prevalent. This paper aims to shed light to certain dimensions of the issue and focuses especially on (...) the impact of juristic disputations and khilāfiyāt on the emergence of juristic method. The discussions about the sources and methods of religious knowledge were a significant part of the heated intellectual debates in the early period of Islamic scholarships. These discussions made by scholars interested in theological matters in kalām context were the matters of usūl, which would have turned into a separate discipline thereafter. The aforementioned period also witnessed Hanafīs completing the first fiqh compilation by recording the body of masā’il in fiqh that they had developed and codified. Hanafīs then involved in the methodological discussions of theologians in the context of justifying their juristic views. The tradition of scholarly discussion that had widely contributed to the earlier period took a new dimension by the introduction of jadal to the Islamic world. First theologians and later jurists adopted the method of jadal in their debates and scholarly works. By the 4th and 5th centuries AH, fiqh became popular more than ever and promoted the juristic disputations in such a way that those disputations turned into a common and significant performance among Islamic intellectuals. Meanwhile, the khilaf genre, in which the disputed juristic matters have been discussed and justified, improved in those centuries as well. Consequently, a new method of usūl writing, namely the method of fuqahā, which can be applied in the justification of the masā’il and in juristic disputations, emerged. Thus, the first and most typical work of that method, Taqwīm al-Adilla by Dabūsī, perfectly addressed the needs of the disputation tradition in the era, by including many chapters that could be regarded as related to the substantial law and many examples from substantial law, by treating the jadal topics in qiyas and ‘illa chapters in detail and by avoiding the speculative theological disputes. Later, the method developed by Dabūsī attracted attention and many jurisprudents wrote usūl works adopting the method before the end of 5th century AH. Especially the usūl work of Bazdawī served as a model for the later Hanafī usūl literature. However, the juristic method lost its popularity when the Islamic scholarships fell under the influence of philosophy and logic after al-Gazālī and al-Rāzī. Jadal and ‘ilm al-bahth wa’l-munāzara have been treated under the discipline of logic afterwards. Nevertheless, even after the evolution of the usūl perspective, some Hanafīs still wrote usūl works by juristic method and some of them, despite adopting the new philosophical perspective, referred to the usūl of Bazdawī in their “mamzūj” (combined) usūl works. (shrink)

The sciences of kalam and fiqh, which have a special importance in the history of Islamic thought and science, became prominent with their interactions with other sciences in their formation processes and their contributions to the evolution of religious thought. In the literature, the field representing the linguistic, religious, mental and practical aspects of fiqh has become widespread with the concepts of usūl-i fiqh and fürū-i fiqh, and the part about creed as usūlü'd-dīn or fiqhu'l-akbar. It has drawn our (...) attention that Imam Abū Ḥanīfa and Imam Shāfiʿī's ijtihads, fatwas and thoughts have remained up to date in every century without exception in the vortex of overdoing and understatement in these two disciplines. However, there are some narrations stating that although these imams were interested in kalam, they kept a distance from it. Their, famous students also indicated that they gave them advice in this sense. Therefore, this study has been prepared in order to examine the background of the aforementioned issues. For this purpose, the reasons why two imams preferred the science of fiqh in the main axis of the subject were subjected to a general criticism. Consequently, it has been seen that both imams had similar concerns and their ideas have been overlapping in the face of the creed developments of the period. (shrink)

One of the basic denominators of Islamic jurisprudence is worship. Man's lifelong adventure of servitude gains meaning only through worship. I’tikāf is one of the acts of worship performed by human beings who want to fulfill their essential duties in this mortal world. In such a way that the servant retreats in seclusion in i’tikāf and approaches his Lord, free from worldly pleasures and desires. For such an act of worship to fulfill its purpose, it must be performed with (...) its conditions and rituals. In this study, the issues related to the worship of i’tikāf according to the Ḥanafī school are explained. The opinions of many jurists, especially the imams of the Ḥanafī sect, are included. This research, which is one of the first Turkish academic studies to examine the views of a sect on the worship of i’tikāf in a comprehensive and detailed manner, is also important because it explains the issues together with their basis in the usūl al-fiqh. Throughout the research, the fiqh sources of the Ḥanafī school were used, and the issues that the jurists agreed on were given from the source that explained the issue with its evidence and revealed its basis in the methodology. In addition, the narrations and procedural issues that are at the basis of the issues and that cause the jurists to disagree are mentioned. First, the definition of i’tikāf was made, then its ruling and its parts were explained. Then, the conditions of i’tikāf are examined and finally, the things that violate i’tikāf are analyzed. (shrink)

The subject “rule”, which is one of the most fundamental issues of the Islamic legal theory (usūl al-fiqh), has been in the center of methodological debates. There is one important term in this regard, which should be studied very carefully: Khiṭāb(speech) of the God. It is because that, especially since the first period of Islam, it has been taken with some significant terms in the field of Kalāmsuch as Husn (pretty; good), Qubh (ugly; evil), and the quality of God’s (...) talk. Yet, adopting this term in the description of the “rule” shows that Fiqh is based on divine inspiration, and it also emphasizes that even though there are some differences in details, wisdom of human being is not ignored when adjudicating. Moreover, it suggests that the validity or methodological accuracy of the “rule” which is adjudicated with ruling case is related to the connection through the term speech or divine inspiration. In this regard, Kalāmdimension of the term and its affect to legal theoretical discussions are very important in terms of historical process of the definition of the “rule” in Islamic law. In this study, I tried to examine whether or not the term “khiṭābof the God” which is used in the definition of the “rule” formed a limitation for consideration of legal evidence in Islamic law and if there is any limitation for the legal evidence regarding being only in the Qur’ān and the Sunnah due to this definition.SummaryThe “hukm (rule, arbritation, judgment, God’s will)”-as the backbone notion in usūl al-fiqhis one of the significant key notions discussed in the legal theory. Specifically, the term “khitabullah” mentioned in the definition of hukmis noteworthy to investigate. Since the early formation period of Islamic law, the term khitabullahhas been embraced along with the theological subjects: “husnand qubuh(the good and evil) and kalām(the attribute of speech to Allah)”. The term “khitabullah” in the definition of hukmemphasizes that indeed the source of fiqhis the revelation (wahy) and also emphasizes that the function of reason (‘aql) is not ignored in the process of adjudication- even if there are some nuances in details.Additionally, it presents that the validity or methodological accuracy of the “rule” which is adjudicated with ruling a case is connected to the term speech (khitāb), or in other words to revelation (wahy).On the whole, in the legal theory, the rule of Sharī‘ah is defined as God’s khitab(the communication of God), which means the demand of God relating to the acts of those who are subject of law or the effect of the khitābon the acts of those persons. Although, in the early formative period various explanations were made about what the rule is, it can be understood that the present definition of hukmbegan to evolve towards the end of the 5thcentury (A. H.). It is clear that al-Ghazālī had an impact on the formation of this definition. It is because al-Ghazālī defined the rule of Sharī‘ahas “the communication from God relating to an act of the person who is the subject of law”. After al-Ghazālī, al-Rādī and al-Baydāwī added to al-Ghazālī’s definition the words “iqtidā and takhyīr” and Ibn Hājib added “wad‘an”. Whereas in the Mutakallimun(theologians) tradition, Ibn Hacib's definition was preferred, Fuqaha(jurists) tradition chose two definitions-resembling each other: “Those coming to exist with the khitāb” and “the effect of God’s khitāb”.Along with al-Ghazālī’s definition, the concept of khitābcarved out a niche for itself in it and became the main element of the definition. It is understood that some discussions in the field of theology, such as husn-qubhand God’s attribute of speech have been effective on the interpretation of the concept of khitāb. The Ash‘arilegal theorists argue that the good and evil are not attributes of the self / the acts, whereas the Maturidi legal theorists argue that the exploration and determination of these attributes is rational and thus, the verdict reached via this rationale is lawful. The Maturidi legal theorists initiated the concept of being subject of law with the concept Sharī‘ah and in the line with this opinion; they defined hukmon the basis of khitāb. On the other hand, the Mutazilites’ claiming the attribute of good and evil are inherent feature of the act, did not define hukmon the basis of the khitābaccording to their theological understanding. The word of khitābassessed with God’s eternal speech (al-kalām al-azalī) has been approached from various aspects: for instance, whether the presence of the addressee is mandatory. The early Asharites scholars (mutaqaddimun), in particular Imam Asharī, did not entitle the eternal speech as khitāb. They consider that the presence of the interlocutor is necessary in the conversion of Kalāminto khitāb. The mutaakhirunAsharites (successors of the early Asharites scholars) did not consider the presence of the interlocutor necessary, thus they viewed the eternal speech as khitāb. The former identification of the hukmwith khitābby the early Ashari legal theorists caused to the problem of whether hukmis adventitious or not. Therefore, this approach was criticised by the Mutazilites. On the other hand, the Maturidi and Mutezilite legal theorists accept that hukmis adventitious; hence they do not consider as a problem naming the eternal speech of God as khitāb.When the historical course is examined, it can be said that one of the important aspects of the development of hukm’s definition is the use of khitāb. Khitābin some cases is used without possessive construction, in other cases it is used with possessive construction with God, or in possessive construction with shar’ or Shāri’. The most important one within these possessive constructions is the notion “khitaballah”. Therefore, it is necessary for khitaballahto be approached from the angle of the legal theory. In comparison to other terms, this notion narrowed the scope of the rule down. In the meanwhile, it raised the question: how the rule deduced via legal evidences can be incorporated in khitāb? As a consequence of this question, some legal theorists, such as Tūfī, proposed another definition by adducing this question.Although it is commonly accepted that the rules deduced via other evidences are within the context of the khitāb, there are also different descriptions about the concept of khitaballah. The rule is not limited to khitaballahin the conception of traditional interpretation accepting the khitābas eternal speech or literal speech (al-kalām al-lafzī). Because either all evidences are within the context of the khitāb,which is the eternal speech or other evidences are within the context of the khitāb,which is the literal speech. Thus, each result coming to exist with the other evidences is part of the Islamic law. But not all of these rules are considered equal to each other. Because each rule which is deduced from indisputable origin (qatii al-thubut) and is deduced from completely explicit sources (qatii al-dalala) are accepted as the word of God or the Prophet. On the other hand, other rules deduced via jurisprudence- in other words by jurist’s own value of judgment is viewed as the virtual rule (al-hukm al-zāhir). Such rules do not express absolute certainty. It is unacceptable for these rules to be described as the word of God or the Prophet. In this way, it is clearly understood that the concept of khitaballahmentioned in the description do not introduce restriction to the evidences ofSharī‘ah.We do not see a contradiction when the indefinite rules of Islamic law included in the context of khitāb. Because ijtihāddoes not aim to produce a new rule, on the contrary it functions in order to find out the already existing rules. The legitimacy of the rule obtained through ijtihādemerges from the way that this rule is deduced from the khitāb,which directly or indirectly represents the divine will. In addition, according to us, this legitimacy is not merely limited to versification and conception of the khitāb, but it also includes the function of the reason in (reasonable of the) khitāb. As a matter of fact, trying to solve unlimited cases with limited texts is difficult- in fact this is impossible. The majority of the legal theorists also share this opinion. Then, there is no obstacle in accepting that each rule obtained by authentic source and methodology can be considered part of Islamic law by implicating the rule in the context of khitāb(which represents the divine will) - although it may contain error and presumption. (shrink)

This study uses a literature study of examining the Tarjih Council of Muhammadiyah, the second largest Islamic organisation in Indonesia. Criticism is directed towards manhaj’s principle which states that any classical Islamic school of law should not be embraced and, thus, breaks up from the chain of Islamic intellectuality. The critics, however, fail to cover the very idea of Muhammadiyah as an embodiment of the Islamic renewal vision. The article aims to reveal the evolution of the (...) manhaj. The evolution will be elaborated into stages to show the development of concepts and principles in each stage. The article is based on a literature study using constructive conceptual analysis. The analysis is divided into three steps, namely analytical assessment, performative aspects, and conceptual genealogy, stressing the reflective relationship between knowledge and social reality. The study shows that the Tarjih Council’s preference not to embrace any classical Islamic schools of law has developed since the establishment of the Tarjih Council. The developments of manhaj’s formulation occur in three stages from 1924 until 2000. The manhaj comes up with the synthesis of textuality, rationality, and spirituality as the basic vision of Muhammadiyah’s renewal idea which reflects the achievement of a modernist Islamic movement. The study, in comparison to previous research, provides a more comprehensive picture of the manhaj of Muhammadiyah as a representation of the Islamic renewal movement and shows how the manhaj comes to a synthesis that marks Muhammadiyah as a unique modernist-renewal movement.Contribution: The study enriches the perspectives on the manhaj as the backbone of Muhammadiyah ideology and shows that Islamic modernism in Indonesia has stepped further to uncover a synthesis suitable to Indonesian society. (shrink)

This article examines the influence of the Hanafī philosophy of the Mamlūk period on the early Ottoman fiqh studies. Since the Egyptian and Damascus regions, which were under the rule of the Mamlūks, became the most important centres of knowledge in the Islamic world, it is understood that the Mamlūks’ scientific knowledge was superior to the Ottomans. On this occasion, many scholars who were considered the leading figures of the Ottoman scientific community turned to Egypt and Damascus regions (...) and benefited from the scientific accumulation there. In fact, these scholars who played an active role in the formation of the Ottoman scientific environment completed their education in Damascus and Egypt under the rule of the Mamlūks and graduated from the Mamlūk education system and assumed important roles in the formation of the Ottoman science understanding. During this period, the Hanafī judges (fuqahāʾ), who were active in the Mamlūk community, contributed to the development of the leading names of the Ottoman scientific community and this thought had an impact on their understanding of science. In this context, it is possible to say that the fiqh studies of the Ottomans in the first period were influenced by the Mamlūk Hanafī who had their characteristics. The two main characteristics of Hanafī thought in the Mamlūk period, the hadīth-centred juristic (fiqh) idea and the method of mamzûc (mixed) fiqh style are also seen in Ottoman fiqh works.Summary: In this article, the effect of Hanafī fiqh thought on the early Ottoman fiqh studies in Mamlūk period is discussed. While the Ottomans did not yet establish a scientific tradition in the period of foundation and ascension, many Mamlūk cities replaced Baghdad as the centre of knowledge of the Islamic world. Because the Mongol invasion, the crusades and the destruction of Andalusia due to reasons such as many scholars displaced by the Mamlūks settled there. Especially during this period, Egypt and Damascus, which were under the rule of the Mamlūks, became the most important centres of science in the Islamic world. In this respect, 14th-16th It is accepted that the science level of the Mamlūks was quite superior to the Ottomans in the 16th century. On this occasion, many scholars who are considered as the leading names of the Ottoman scientific community turned to Egypt and Damascus regions and benefited from the scientific accumulation there. Osman Ghāzī’s teacher and father-in-law, Sheikh Edebālī, Davud-i Kayserī, Sheikh Bedreddin, Molla Fanārī, Molla Gürānī are some of these scholars. In addition to these, scholars such as Muhsin-i Kayserī, Germiyanlı Poet Ahmedī, Hacı Paşa, Celāleddin Hızır, İbnü’l-Cezerī and İbn Arabşāh have also studied science in Egypt and Damascus. These scholars, who played an active role in the formation of the Ottoman scientific environment, completed their education in Damascus and Egypt under the rule of the Mamlūk and after graduating from the Mamlūk education system, they played an important role in the formation of the Ottoman science understanding. Sheikh Edebālī was accepted as one of the scientific and spiritual leaders of the Ottoman Empire. Davud-ı Kayserī was the first chief professor of İznik madrasah, the first Ottoman madrasah. Molla Fanārī had the privilege of being the first Ottoman shaykh al-Islām. Molla Gürānī became the teacher of Fatih Sultan Mehmed. During this period, the Hanafi faculties, which were active in the Mamlūk science community, contributed to the growth of the leading names in the Ottoman science community. Molla Fanārī, Seyyid Şerif Cürcānī, Shaykh Bedreddin and Poet Ahmadī have learned lessons from Bābertī, who important Hanafī scholars in Egypt. The idea of Hanafī fiqh in the Mamlūk period influenced the studies of the Ottoman fiqh in the first period. In this context, Molla Khüsrev refers to Zeyla‛ī and Bābertī, the leading Hanafī scholars of Mamlūk in many parts of his work, although he did not go to the regions dominated by the Mamlūks. The two main characteristics of the Hanafī thought in the Mamlūk period were the hadith-centred fiqh thought and mamzûc (mixed) method of fiqh. In the Mamlūk period, hadith studies which were not seen before in Hanafī sect were done. During this period, Hanafī jurists spent time in the field of hadith such as Ibn Balabān, Ibn Turkmānī, Zeylaʻī, Kuraşī, Mogoltay b. Kılıç, Bedruddīn Aynī, Ibn Kutluboğa, Serūcī, Bābertī, İbnü’l-Humām, İbnü’l-‛Adīm. They tried to eliminate the lack of studies in the field of hadith in the Hanafī circles while their studies certainly require hadith expertise. As a result of the works of these jurists in the field of hadith, the basic sources were frequently included in the fiqh studies in the Mamlūk period and, the hadiths were started to be made. The influence of this understanding, which had an important place in the thought of the fiqh of Hanafī during the Mamlūk period, can be seen in the Ottoman fiqh works in the first period. In this context, Molla Khüsrev, in his work with the influence of the early Ottoman jurists who had been educated in Egypt before him, gave some basic sources of hadith and sometimes gave information about the reliability of hadiths. On the other hand, it is possible to say that this issue is quite insufficient in Ottoman fiqh works when compared with Hanafi jurists of the Mamlūks. A comparison of Ibnü’l-Humām’s Fethü’l-kadīr and Netāicu’l-efkār, which was performed by Kādızāde order to complete it, can be compared. Apart from that, there are different attitudes between Şürünbülālī and Şeykhi-zāde known as Damad Efendi, they lived in the same period. Şürünbülālī, one of the Egyptian scholars of the Ottoman period generally gave the hadiths from the basic hadith sources in his work Merāki’l-felāh, while Şeyhīzāde did not obey this issue and rarely included basic hadith sources in his work Mecma‛ü’l-enhur. These differences can be explained by the necessity of the scientific environment. Because the Hanafīs were accused of not using hadith in Egypt and its environs, the Hanafī jurists living in this region should have directed them to be more rigorous about the hadith. However, since the Hanafī jurists living in other Ottoman regions did not have such a problem, they probably did not feel the need to refer to the main sources of hadith in the power of hadiths. Therefore, it can be said that the scientific environment and the need arising in this direction lead to different attitudes of the jurists living in the same period. The mamzûc (mixed) method starting with Ibnu’s-Sāātī, In the 8th-century, it was especially effective on the idea of ​​the fiqh style of Hanafī jurists. Although the first name of the mamzûc (mixed) method, Ibnu’s-Sāātī, was not one of the scholars of the Mamlūk period, the influence he initiated was more common in the Mamlūk period and became one of the characteristic features of the Hanafī fiqh thought in this period. Therefore, it is understood that the majority of Hanafī jurists had a gratified method. In addition to this, it is seen that Ottoman jurists who were educated in and around Egypt write procedural works in grammatical style. Molla Fanārī's work Fusūlü’l-Bedāyi is the most important example of this genre. Moreover, even Molla Khüsrev, who had not gone to Egypt and his surroundings, wrote a memoir-like work called Mir’ātü’l-Usûl. The works of these two authors show that the Ottoman jurists were influenced by the Mamlūks. As a result, it is possible to say that the fiqh studies in the early period of the Ottomans were influenced by the Mamlūk Hanafīs who had their characteristics. The hadith-centred fiqh thought and mamzûc (mixed) fiqh style understanding had an impact on the early Ottoman fiqh studies. (shrink)

The qirāʾāt or variae lectiones represent the vast corpus of Qurʾānic readings that were preserved through the historical processes associated with the textual codification and transmission of the Qurʾān. Despite the fact that differences among concomitant readings tend to be nominal, others betray semantic nuances that are brought into play within legal discourses. Both types of readings remain important sources for the history of the text of the Qur’ān and early Arabic grammatical thought. While some recent scholars have questioned the (...) historical function and nature of the corpus of qirāʾāt, others have argued that specific types of variant readings were the resultant products of attempts to circumvent legal inconsistencies which were found in text of the Qurʾān or were generated through legal debates. Following a preliminary review of the historical framework of the genesis of qirāʾāt through reference to early grammatical literature, an attempt will be made to shed some light on the role that semantic variation among concomitant readings played in the synthesis and interpretation of law. The aim will be to draw attention to the subtle theoretical frameworks employed by jurists for their contextualization and analysis. This will also include a review of attitudes towards the forms of qirāʾāt that classical scholarship designated as being anomalous or shādhdha. (shrink)

The intra-school controversies in Hanafī school are remarkable. These controversies pose a risk for legal safety and stability and creates difficulties for muqallīd Hanafī judges and muftīs. In the historical process, different types of literature such as mukhtaṣar and fatwa (legal opinion) books, and applications such as aṣṣaḥ-ı aqvāl and maʻrūdhāt, emerged to solve this problem. One of the last example of these applications is the codification movement. The subject of this study is the relationship between the Majalla al-Aḥkām al-ʿAdliyyah, (...) which is the first product of codification based on fiqh (Islamic jurisprudence), and the intra-school preference. In order to describe this relationship, it is briefly emphasized that one of the aims of codification of Majalla is to satisfy the need for intra-school preference. The function and content of Majallaʼs necessary reasons, (asbāb al-mūjiba) was analyzed in terms of intra-school preference. The interventions on the preferences of the Majalla Commission are also emphasized. The Majalla is a text of the intra-school preference. The analysis of its content in relation to intra-school preference is very important. Therefore, in order to reveal what kind of method is used in intra-school preferences and to determine different aspects of intra-school preference in the Majalla, the chapter about ‘sale’ (Kitāb al-Buyūʿ) of the Majalla are examined.Summary: The intra-school controversies in Hanafī School, which is quite important in terms of freedom of ijtihād (independent legal judgment) and legal wealth, possible to threaten legal safety and stability. These controversies also make difficult for judges to reach a judgment or fatwa in controversial affairs. For this reason, determination of the rājiḥ (preferred opinion) in controversial issues in the school, is a need that must be eliminated.The intra-school preference can be described as "to determine the superior, preponderant of different opinion or narrations about a specific issue in the school". In the historical process different types of literature such as mukhtaṣar and fatwa books, and different applications such as asaḥḥ-ı aqvāl and maʻrūzāt, emerged to meet this need. One of the applications aimed to meet this need is the codifications in the last period of the Ottoman State.The relationship between the Majalla al-Ahkam al-Adliyyah, which is the first example of codification based on fiqh (Islamic jurisprudence), and the intra-school preference; and in this context, while preparing the Majalla how a method was followed in the intra-school preference; at what rate be obeyed the rājiḥ (preferred) opinion; articles contrary to the rājiḥ (preferred) opinion in Majalla and their reasons; whether legal arrangements have been made in all controversial issues; at what rate be met the need of determination of rājiḥ (preferred) opinion are the issues that need to be examined.One of the main reasons for the need for a law text such as Majalla al-Ahkam al-Adliyyah is the multitude of the intra-school controversies in Hanafī School. Therefore, the goal of Majalla is to prepare a code that contains rājiḥ opinion.When Majallaʼs necessary reasons, i.e. asbāb al-mūjiba, are examined in terms of the intra-school preference, it is seen that there are two basic functions of necessary reasons. The first of them is, emphasizing that the code is prepared substantially in accordance with the râjih opinion in the school. In fact, that this issue in the asbāb al-mūjiba of the first ten books of Majalla is expressly stated. The other function of the asbāb al-mūjiba is to justify that why rājiḥ opinion are not be confirmed in some article. In the necessary reasons it is stated that twelve articles are prepared in the direction of unrâcih (unpreferable) opinion. Considering that Majalla is formed of 1851 article, it will be better understood that how the rājiḥ opinions are effective in Majalla's content. Essentially, the conditions of the period also make it necessary. The preference of the non-preferred opinion of Züfer (d. 158/775) in 692nd article of Kitāb al-Ḥavala, caused the reaction of some circles mainly Şeyhülislam Hasan Fehmi Efendi (d.1298/1881) and for this reason Ahmet Cevdet Pasa (d.1895) was dismissed from the ministry of Divan al-Ahkâm al-Adliyyah and the chairman of the Majalla Commission.When the asbāb al-mūjibas of contrary articles to rājiḥ opinions are examined, it is seen that maṣlaḥa and customs are determinative in these preferences. It is also seen that the preferences of some jurists are also mentioned as a reason of preference. The most widespread preference’s reason in Hanafī sources is in congruity with the texts. On the contrary, it is noteworthy that, besides the interdiction of extravagant (safih), it is not operated as a preference’s reason in Majalla.Some preferences of the Majalla Commission were intervened by other institutions. The chapters prepared by the commission were examined both by Majlis-i Wukalā and Mashihat, and these chapters were subject to some revisions at this time. Here, two articles prepared on the basis of the non-preferred opinion were intervened by Majlis-i Wukalā. The first of these is 216th article that written in the direction of opinion of Mashāyikh Balkh, which argues that it is permissible to sell separately ḥaqq al-murūr (the right of passage) and ḥaqq al-shirb (water right), the second is the 611th article which regulates the liability to damage of ajīr al-mushtarak (joint salaried employee).When the content of Kitāb al-Buyū, the first and the most voluminous book of Majalla, is examined in terms of the intra-school preference, it is seen that the rājiḥ opinions in the school are generally taken as basis. It is stated that in the asbāb al-mūjiba of the Kitāb al-Buyūʿ the four issues are prepared basing on the non-preferred opinion and these preferences are justified with custom and maṣlaḥa. However, the contrary articles to the rājiḥ opinion in the Kitāb al-Buyūʿ are not limited to these. According to our research, in addition to these, three articles were prepared with the preference of non-preferred opinion. These are the 118th article regarding that the bayʻ bi-l-wafā is permissible in chattels, 165th article on the definition of al-ghabn al-faḥiş (lesion), and the 309th article concerning the provision of the khiyār al-sharṭ (right of cancellation). These three articles show that the regulations contrary to the rājiḥ opinion in Majalla are not just those explained in the asbāb al-mūjiba and this situation is contrary to the method that is followed when preparing the Majalla.In some controversial issues in the Hanafi School, authorized jurists to preference (asḥāb al-tarjīh) disagreed over which opinion is rājiḥ. It wasn’t explained that how a method would be followed in Majalla when the legal arrangements were made in these matters. When these issues are examined, it can be said that the preferences of the majority, the providing of convenience and the preference by some jurists are effective.Preferences in Majalla have not been occurred only among the sharʻī (related to Islamic Law) provisions. In addition, the definitions and the inscription in the definitions are also the subject of preference. In this context, the preferences related to the definition of the sales contract, the suspended contract (al-ʻaqd al-maqqūf) and the al-ghabn al-faḥiş in Kitāb al-Buyūʿ can be mentioned as an example.Some controversial issues in the Hanafi School are not regulated in Majalla. When considering the multiplicity of controversial issues and therefore the difficulty of making legal arrangements to cover all of them, this situation is natural. Moreover, some of these issues may not have been regulated in Majalla because they are not frequent and necessary. However, it is not possible to explain all the controversial issues that have not been regulated for these reasons. Because some of the controversial issues that have not been legislated are basic, relatively important issues and they are included in the mukhtaṣars. This indicates that when preparing the Majalla, instead of making preference on some controversial issues, the method of non-regulation of these matters is adopted. It can be said that this method is applied as a way of creating law text which is clear of controversy. Thus, the determining of the rājiḥ opinion in these matters has been left to the judges. This situation is not suitable to meet the need of determining the rājiḥ opinion, which is the goal of Majalla. But it is the result of the difficulty of making a law that encompasses all legal issues. (shrink)

What is the core of legal scholarship? How can we understand its relation to other disciplines, such as moral and political philosophy, sociology, and economics? I explore these questions by analysing the impact of the dual nature thesis. Criticising established theories of legal scholarship, I defend the ideal of an integrative jurisprudence. Integrative jurisprudence combines the two dimensions of law by employing analytical, empirical, and normative methods. I then discuss three objections and address the problem of how to bridge (...) is and ought. In the course of my analysis of three different bridge theories, I ultimately further develop the dual nature thesis into a triadic nature thesis. (shrink)

Jurisprudence For a Free Society is a remarkable contribution to legal theory. In its comprehensiveness & systematic elaboration, it stands among the major theories. It is also the most important jurisprudential statement to emerge in the post-war period. The pioneering work of Lasswell & McDougal on law & policy is already legendary. Most of the work produced by these scholars together & in collaboration with their students represent applications of their basic theory to a wide assortment of international & national (...) legal & policy problems. Now, for the first time, the authoritative statement of their legal philosophy appears as a single volume. In Part I the authors develop their fundamental criteria for a theory about law, including the requirements of clarifying observational standpoint, focus of inquiry & the pertinent intellectual tasks incumbent on the scholar & decisionmaker for determining & achieving common interests. Trends in theories about law, including Natural Law, the Historical School, Positivism, the Sociological Study of Law, American Legal Realism & other contemporary theories, are explored for what they might contribute to the achievement to the authors' conception of an adequate jurisprudence. In Part II, the social process as a whole & the particular value-institutional processes that comprise it are described & analyzed. Because people establish, maintain & change institutions, the dynamics of personality & personality's relation to law is delineated. Part III explores the intellectual tasks of policy thinking, from clarification of values, through description of trend, the scientific examination of conditions, projection of future developments & the invention of alternatives. Part IV examines the structure of decision in a free society, a society in which the achievement of human dignity is confirmed in both word & deed. Six appendices bring together monographs by the authors over a period of forty years which deal, in more detail, with particular matters treated in the body of the book. (shrink)

Introduction to the Philosophy of Law: Readings and Cases employs a combination of case-based and theory-based materials to show novices in the field how the philosophy of law is related to concrete and actual legal practice. Ideal for undergraduates, it engages their curiosity about the law without sacrificing philosophical content. The authors emphasize a command of legal concepts and doctrine as a prelude to philosophical analysis. Designed to acquaint students with the fundamentals of jurisprudence and legal theory, Part (...) I of the book includes readings from influential philosophers representing eight different types of jurisprudence: natural law theory, positivism, constructivism, consequentialism, critical legal studies, feminist theory, practice theory, and new natural law theory. In Part II, the authors present a variety of cases that allow students to apply the theories in Part I to the actual practice of law. Unlike similar texts, which focus primarily on public law, this unique book addresses both private and public law, and includes cases on statutory interpretation, contract law, and tort law. Brief essays precede and discussion questions follow each case. Introduction to the Philosophy of Law: Readings and Cases serves as an exceptional text for courses in the philosophy of law, jurisprudence, and legal theory. (shrink)

Many of the current debates in jurisprudence focus on articulating the boundaries of law. In this essay I challenge this approach on two separate grounds. I first argue that if such debates are to be about law, their purported subject, they ought to pay closer attention to the practice. When such attention is taken it turns out that most of the debates on the boundaries of law are probably indeterminate. I show this in particular with regard to the debate between (...) inclusive and exclusive positivists: I present several ways of understanding what this debate is about and argue that none of them is defensible. My second argument focuses more on the purpose of jurisprudential inquiry. I argue there that even if some jurisprudential debates have determinate answers, it does not follow that they deserve our attention, because not all true facts are worth knowing. After discussing and rejecting the claim that jurisprudence could be justified as knowledge for its own sake, I propose one possible justification for engaging in legal philosophy and outline its implications for the kind of issues that should be pursued. (shrink)

There are differences in the approach to law and ethics in Western philosophy compared to law and ethics in Islamic philosophy. Western philosophy itself is divided into several schools, including natural law philosophy, legal realism or positivistic philosophy, historical philosophy of law, sociological philosophy of law, and utilitarianism. These schools have different views on the position of law and ethics. In the discourse of Islamic philosophy, Law and Ethics or Morality (...) are seen as interrelated principles. While Western philosophy is divided into several schools and dichotomizes between Law and Ethics, in Islamic philosophy they are integrated into the view that law and ethics are a unity and represent the spirit of Islamic teachings. This research aims to explain the role of law and ethics in Western philosophical schools. This research will explain how Western philosophical thought relates to law and ethics, and how the integration of law and ethics occurs in the context of Islamic philosophy. This research is a type of literature review or bibliographic study. The method applied in this research is descriptive analysis using a comparative approach. In the issue of Law and ethics, Western philosophical schools are divided into two views: those that unite law and those that separate law and ethics. The view that unites law and ethics includes natural law philosophy and historical philosophy of law. The view that separates law and ethics includes legal realism, positivism, social jurisprudence, and utilitarianism. Meanwhile, in the context of Islamic philosophy, the relationship between law and ethics is considered an integrated dimension in human life that cannot be separated. (shrink)

Sunnah is considered the second of the main sources of Islam. The reports, which are considered the carrier of the sunnah, have been conveyed by narrators at different levels. The reasons for the difference between the conveying narration levels were handled mainly as a subject of research and discussion by theologians and Muʿtazila scholars as well. One of these subjects is the factors affecting the conveying of the narration and what is preventing it from being conveyed. Qāḍī Abd Al-Jābbār (d. (...) 415/1025) is one of the scholars who has a different account on this subject. He developed a philosophical perspective on the Islamic narrative case, acting in line with the rationalist sectarian approach. Accordingly, the frequency of conveying narration, whether the report is religious, its effect on the interlocutor, it's becoming ordinary. Therefore, ın this study, the factors which affect conveying of the khabar are emphasized in line with the opinions of Qāḍī Abd Al-Jābbār. In other words, the factors that ensure that a report is voiced and repeated by the members of the society and the reasons that prevent the transfer of a word are emphasized. Qāḍī Abd Al-Jābbār dealt with the factors affecting the conveying or repetition of khabar with the social, psychological and belief aspects of human and tried to exemplify. These factors have a two-way effect. Some of factors require the conveying of the khabar, while others are considered to prevent and weaken it. Although these factors are related to the psychological aspect of the person in terms of source, they differ from the process of action. The first of these factors that require the conveying of the khabar was named by Qāḍī Abd Al-Jābbār as الداعي. The second one is the factors that prevent the communication of the khabar, and it was named as الصوارف. The “dāʿi” for doing or not taking an action can be more than one and also different in strength. The action of the person towards the conveying of the khabar is directly proportional to the force of the “dāʿi”. Strong actions motivate the person to perform it more, whereas the weakest influence lead less people to perform the action. Therefore, two khabar with the same “dāʿi” should be conveyed at the same rate. Because the main factor is named “dāʿi” that provides their conveying has the same force. Accordingly, it is not correct whether one of the two khabar items that share the same situation and are in the same time period is not posted and the other is. In other words, the transfer of something is devāʿī / الدواعي and in accordance with the strength of the need within the framework of the custom / العادة law. The conveying of the khabar status depends on the tendency to post it or the issues that prevent it. Among these factors, the issues that enable the conveying of the khabar and motivate people in this regard are also expressed in terms of issues and elements that prevent people from conveying. These are closely related to the psychological situation of the person who conveyed the khabar, the ordinariness of the khabar, the need for the khabar, the distance to the time of the khabar, the religious quality of the khabar and whether there is a fear situation surrounding the conveying. According to this, if there is a “dāʿi / motive” and " devāī / motives" related to the khabar, it is conveyed but if there is any "sārif/ inhibitor" about it, it is not conveyed. The “dā’i / motive” and "sārif/ inhibitor" of the khabar do not have the same strength. Accordingly, to obtain neccecity in knowledge, the correctnes of khabar depends on the “dāʿi” in the khabar. Therefore, since the “dāʿi” owned by the “khabar from single persons / ahad khaber” are weaker than the “dāʿi” owned by the mutawatir khabar. Therefore, it cannot be expected to be transmitted at the same level. (shrink)

The jurists, taking as reference the texts and the experiential studies of the period, preached various provisions regarding the issues such as fetal development, full birth or birth and death in this process. The majority made evaluations on the basis of the hadith about the fetal development process -mentioned in three separate periods of forty days-, but it was observed that this did not overlap with some medical guidance. Because the development period expressed by the jurists could not be prolonged, (...) it was determined that this process was completed before according to modern medicine. Jurists stated that he did not have any law regarding the fetus born before this period, since it was based on this period, and evaluated and evaluated whether those born later were alive or not. It has been presented in different jurisprudence in terms of various branches in fiqh, which is called “frequency” of the previous abortion effect after/during the full birth, and which is considered to be soul-blowing at the end of four months. These conflicts affected sons' abilities such as bathing, shrouding, burial and burial of the miscarriage. The mother also created many provisions such as her legal status such as nifas, talaq and ummu'l-veled, punishment lessons such as abortion and gurra, financial concepts such as heir and inheritance, and its effects on conditional contracts. In our study, in the event that the fetus dies due to the cell in the womb where the study medical information is located, the protections against it and the judgment it gives birth to in relation to it are discussed. (shrink)

I propose a framework for comparative Islamic—Western ethics in which the Islamic categories "Islam, Iman," and "Ihsan" are juxtaposed with the concepts of obligation, value, and virtue, respectively. I argue that "shari'a" refers to both the obligation component and the entire structure of the Islamic ethic; suggesting a suspension of the understanding of "shari'a" as simply Islamic "law," and an alternative understanding of "usul al-fiqh" as a moral epistemology of obligation. I will test this approach by (...) addressing the question of reason in Islamic moral epistemology via an examination of an argument advanced by a founding usul scholar Muhammad bin Idrīs al-Shāfi'ī. (shrink)

The concubines, with whom the sultans lived a family life, were classified according to a certain hierarchy in the Harem. The first wives of the sultan and those who gave birth were called Kadınefendi. The other wives with a lower status than the Kadınefendi wives were called Ikbal Hanımefendi. According to Islamic law, marriage with a concubine is not like a marriage with a free woman. If a marriage is desired, the concubine must be freed. Until the 19th century, (...) sultans did not marry their concubines for a few exceptions. In the 19th century, the legal status of concubines in the Ottoman Empire became controversial. The countries of origine changed when the Ottoman Empire was unable to conquer new territory. Consequently, the enslavement procedure of prisoners of war disappeared. Instead, Caucasian immigrants, who had to leave their homeland mainly due to the Russian attacks, gave their daughters to the Ottoman palace so that they would not suffer misery and could reach important positions in the future. Among these were orphans from poor families as well as those from noble Caucasian dynasties. Even though the young women in the palace were called concubines, at least some of them were free/Muslim persons. This meant, that they could not be enslaved according to Islamic law. Although there was no problem for those who served in the palace, a remarkable situation emerged for the would-be spouses of the sultan. Could a woman from a free and Muslim family be the sultan's wife without a marriage bond? Was the limitation of the Kadınefendi numbers to four (in times of Sultan Abdülaziz) due to the Islamic law principle, that a man could marry maximum four wives? Was there a marriage ceremony (nikāh) for Kadınefendi wives? What was the situation of the Ikbal? Satisfactory answers to these questions have not been given yet. However, there are no official records it was claimed that lately sultans married especially their concubines who were Abkhaz descendants and included them among their wives in this way, because they were free and Muslims. Thus, the matter whether Sultan Abdülhamid II's wives were concubines or wedded became the subject of some research today. Memoires claim that almost all of Sultan Abdülhamid's wives were free and of Muslim origin. According to this, it was said that the wives of Sultan Abdülhamid could not have the status of the concubine and that their relationship should have been by marriage. On the other hand, considering that a maximum of four women can be married according to Islamic law, the marriage of the Sultan, who had thirteen wives, raised juristic questions. This problem was most clearly seen in the inheritance case filed by his heirs after the death of Sultan Abdülhamid. In this case, where it was claimed that Sultan Abdülhamid was married to nine wives, no objection was made to that claim. In this study, information about the wives of Sultan Abdülhamid and their legal status was tried to be determined through the documents related to their salaries during the 2nd Constitutional Era. Besides, the issue of nine wedded women, which emerged in the case of Sultan Abdülhamid's inheritance, was evaluated in terms of fiqh (Islamic jurisprudence). Sultan Abdülhamid was never accused of marriages contrary to Islamic law by his opponents during and after his reign. From this point of view, it can be said that there was no situation contrary to Islamic law regarding the Sultan's harem at that time. This might be due to three possibilities: Firstly, some wives have concealed the truth in the court, which is the weakest possibility according to the data obtained. Secondly, the talaq (divorcement) was hidden by Sultan Abdülhamid and his wives were not aware of it. This possibility has been found to be problematic when evaluated in terms of Hanafi fiqh. Thirdly, the practice of al-nikāh al-tanazzuhī (marriage performed in order to avoid from fornication). Considering the correspondence between the state departments in the period starting with the 2nd Constitutional Monarchy and until the Republic, it is clear that the Kadınefendis were regarded as married wives (their number was limited to four), while the Ikbals were regarded as concubines. From this point of view, it is thought that the most plausible possibility is that the Ikbals were regarded as concubines and their marriages were al-nikāh al-tanazzuhī. (shrink)

In this revised edition, two distinguished philosophers have extended and strengthened the most authoritative text available on the philosophy of law and jurisprudence. While retaining their comprehensive coverage of classical and modern theory, Murphy and Coleman have added new discussions of the Critical Legal Studies movement and feminist jurisprudence, and they have strengthened their treatment of natural law theory, criminalization, and the law of torts. The chapter on law and economics remains the best short introduction to that difficult, controversial, (...) and influential topic.Students will appreciate the careful organization and clear presentation of complicated issues as well as the emphasis on the relevance of both law and legal theory to contemporary society. (shrink)

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both at the (...) level of the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University. (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)

This book brings together the study of two great disciplines of the Islamic world: law and philosophy. In both sunni and shiite Islam, it became the norm for scholars to acquire a high level of expertise in the legal tradition. Thus some of the greatest names in the history of Aristotelianism were trained jurists, like Averroes, or commented on the status and nature of law, like al-Fārābī. While such authors sought to put law in its place relative to (...) the philosophical disciplines, others criticized philosophy from a legal viewpoint, like al-Ghazālī and Ibn Taymiyya. But this collection of papers does not only explore the relative standing of law and philosophy. It also looks at how philosophers, theologians, and jurists answered philosophical questions that arise from jurisprudence itself. What is the logical structure of a well-formed legal argument? What standard of certainty needs to be attained in passing down judgments, and how is that standard reached? What are the sources of valid legal judgment and what makes these sources authoritative? May a believer be excused on grounds of ignorance? Together the contributions provide an unprecedented demonstration of the close connections between philosophy and law in Islamic society, while also highlighting the philosophical interest of texts normally studied only by legal historians. (shrink)

Respect for personal autonomy in decision making is one of the four ethical principles in medical circumstances. This paper aims to present evidence that can be considered good exemplars in the clarification of the ethical viewpoints of the western and Shi’i Islamic perspectives on this issue. The method followed was originally a search in international indexing services in April 2016. Our findings point towards various controversies on individuals’ autonomy lead to different decision making outcomes by health workers in both (...) different traditions. We concluded that although Shi’i Islamic jurisprudence does not seem to allow for personal autonomy in the sense it is understood in a western context, evidence indicates that Shi’i Islamic jurisprudence respects personal autonomy. (shrink)

Yūsuf al-Ardabīlī is one of the Shāfiʿī jurists who lived in Azerbaijan in the 8th century of Hijri. This scholar, whose birth date we couldn’t find any information about, even though it has been searched in both local and foreign literature, died in Ardabīl in the year 799/1397 as bibliographical scholars agreed on. Ardabīlī is a person known by his work al-Anwār li-aʿmāl al-abrār, which he dedicated to Shāfiʿī jurisprudence, and someone with jurisprudential knowledge whom Shāfiʿī jurists benefit from. In (...) his work on jurisprudence (furūʿ al-fiqh), al-Anwār, he discussed the issues without delving deeply into evidences and partially mentioned uṣūl al-fiqh. Yūsuf al-Ardabīlī addressed the topics in his work by classifying them as acts of worship (ʿibādāt), transactions (muʿāmalāt), inheritance (farāʾiḍ), marriage and divorce (munākaḥāt-mufāraqāt), punishments (ʿuqūbāt), the conduct of judges (adab al-qāḍī), and freeing slaves (ʿitq). Moreover, in his work, he provides explanations that shed light on recent studies by addressing the subject of fatwā in detail. By addressing the fatwā institutions, Ardabīlī includes information on topics like the etiquette of istiftāʾ, fatwā with sharīʿah tricks (ḥiyal sharʿiyyah), and exceptions in divorce (ṭalāq). Because no academic studies have been done on his explanations in this field, the subject requires further attention. Additionally, presenting his explanations on the fatwā institution to the scholarly community is greatly important for shedding light on future studies. Islamic jurists recognize fatwā activities as a duty that requires responsibility in terms of religion and worldly life. Therefore, they do not favor the participation of those who lack knowledge and the capability of deducing religious rulings from sharīʿah evidences in fatwā activities.This study aims to contribute to the Islamic jurisprudence literature by addressing the principles of fatwā procedure through Ardabīlī’s perspective in his work, al-Anwār. (shrink)

Al-Shafi'i (d. 820) is clearly one of the most important figures in the early history of Islamic jurisprudence. His Risala or "Treatise" on the "principles of jurisprudence" (usul al-fiqh) is also of interest as an example of an approach to ethics that focuses on divine commands. Following a brief introduction, I offer the reader a few comments about al-Shafi'i's context. I summarize the content of the Risala and then analyze it as an example of divine command reasoning in ethics. (...) Finally, I present some observations on the place of al-Shafi'i's theory in the history of Islamic ethics, particularly with respect to his comments on ikhtilaf, "disagreement.". (shrink)

Although medical confidentiality is widely recognized as an essential principle in the therapeutic relationship, its systematic and coherent practice has been an ethically challenging duty upon healthcare providers due to various concerns of clinical, moral, religious, social, ethical and legal natures. Medical confidentiality can be breached to protect the patient and/or others if maintaining confidentiality causes serious harm. Healthcare professionals may encounter complicated situations whereby the divulgence of a patient’s confidential information may pose a threat to one party whereas the (...) concealment of such information may cause harm to another. After deliberating on the Islamic concept of harm (ḍarar), this paper focuses on the dual duty and conflicts of interests faced by healthcare professionals in the practice of medical confidentiality. Referring to serious infectious diseases with a special mention of AIDS, this study also provides discourse on how healthcare professionals deal with difficult scenarios of conflicts of interests and ethical dilemmas. (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)

I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...) a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis. (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 field of medicine provides an important window through which to examine the encounters between religion and science, and between modernity and tradition. While both religion and science consider health to be a ‘good’ that is to be preserved, and promoted, religious and science-based teachings may differ in their conception of what constitutes good health, and how that health is to be achieved. This paper analyzes the way the Islamic ethico-legal tradition assesses the permissibility of using vaccines that contain (...) porcine-derived components by referencing opinions of several Islamic authorities. In the Islamic ethico-legal tradition controversy surrounds the use of proteins from an animal (pig) that is considered to be impure by Islamic law. As we discuss the Islamic ethico-legal constructs used to argue for or against the use of porcine-based vaccines we will call attention to areas where modern medical data may make the arguments more precise. By highlighting areas where science can buttress and clarify the ethico-legal arguments we hope to spur an enhanced applied Islamic bioethics discourse where religious scholars and medical experts use modern science in a way that remains faithful to the epistemology of Islamic ethics to clarify what Islam requires of Muslim patients and healthcare workers. (shrink)

This article surveys four approaches to moral obligation to non-Muslims found in Islamic legal thought. The first three approaches I refer to in this article as the "revelatory-deontological," the "contractualist-constructivist" and the "consequentialist-utilitarian." The main argument of this article is that present in many of the contemporary works on the "jurisprudence of Muslim minorities" (fiqh al-aqalliyyat) is an attempt to provide an Islamic foundation for a relatively thick and rich relationship of moral obligation and solidarity with non-Muslims. This (...) attempt takes the form of a fourth "comprehensive-qualitative" approach to political ethics in that it appeals not to juridical reasoning of the type "is x permissible and in which conditions?" but rather to Islamic ideals of what it means to live a good life, of what believing, normatively-committed Muslims want to pursue in this world, not only what they may pursue without fear of punishment. This meta-ethical approach builds on and goes beyond the first three. The force of this argument is that this fourth "comprehensive-qualitative" approach to moral obligation to non-Muslims is novel, emergent and not found not in the writings of outright reformers but in those of conservative, "neo-classical," shari'a-minded - even Muslim Brotherhood-affiliated - Islamic scholars. What also adds to the force of this argument is that the other meta-ethical discourses, particularly of contract and utility (maslaha), already get these scholars quite far towards a doctrine of "loyal resident alienage" in non-Muslim societies. That even orthodox Islamic scholars go further shows that they have some interest in giving a theological or principled foundation to a much thicker and richer form of moral obligation to non-Muslims, a relationship which involves recognizing non-Muslims qua non-Muslims and contributing to their well-being. (shrink)

Part I. Furthering debate between leading theories of Law -- The Explantory Role of the Weak Natural Law Thesis -- In Defense of Hart -- Law's Authority is not a Claim to Preemption -- The Normative Fallacy Regarding Law's Authority -- The Problem about the Nature of Law vis-à-vis Legal Rationality Revisited : Towards an Integrative Jurisprudence -- Part II. The Power of Legal Systems -- Law as Power : Two Rule of Law Requirements -- A Comprehensive Hartian Theory of (...) Legal Obligation : Social Pressure, Coercive Enforcement, and the Legal Obligations of Citizens -- Law and the Entitlement to Coerce -- Part III. Conceptual Analysis -- Farewell to Conceptual Analysis (in Jurisprudence) -- What Do We Want Law to Be? Philosophical Analysis and the Concept of Law -- Part IV. New Directions -- Legal as a Thick Concept -- Making Old Questions New : Legality, Legal System, and State -- Legal Disagreements and the Dual Nature of Law -- Is There One Right Answer to the Question of the Nature of Law? (shrink)

Chapter I of The Concept of Law raises a fourth, capital, issue, besides the three well-known ones: i.e., the meta-philosophical issue concerning the point, the matter, and the method of legal theory. The paper purports to present Hart’s philosophy of jurisprudence in its best light, also by referring to some of its theoretical pay-offs, and to defend it, so far as possible, against a few criticisms by supporters of different outlooks (Raz, Leiter, and Dworkin)Resumen:El capítulo 1 de El concepto (...) de derecho plantea una cuarta cuestión fundamental, además de las otras tres bien conocidas: a saber, la cuestión meta-filosófica relacionada con el objeto, materia y método de la teoría jurídica. El propósito de este artículo es exponer la filosofía del derecho hartiana en su mejor versión, mediante la referencia a algunas de sus ventajas teóricas, con el fin de defenderla, en la medida de lo posible, de algunas de las críticas formuladas por los defensores de otros enfoques (Raz, Leiter y Dworkin). (shrink)

The rapid change in the world after the Enlightenment not only brought about revolutionary scientific and technological innovations, but also opened the door to important transformations in the context of thought. Especially with the wind created by the French Revolution, some concepts such as equality, fraternity, and justice, which were already in circulation before, came to the fore even more. One of the concepts that was magnified in this process was freedom. The concept manifested itself in philosophy as an (...) understanding of free will against the idea of determinism, and in politics as independence against oppressive governments. Since the day it was addressed as an independent topic, it has attracted attention with its different types and aspects, including freedom of the press, freedom of thought, freedom of expression, freedom of religion and conscience. We see that the intellectual adventure of the Western world in the last two centuries has been shaped around these concepts. The libertarian attitude, which at first manifested itself as a rebellion against religious and secular authorities, was later driven to extremes that saw itself as independent from all moral and social norms. These debates were inevitably reflected in the field of theology, and topics such as the position of the will of man against God’s will, fate and the problem of evil were reconsidered according to contemporary claims and objections. The atheistic tendencies that emerged in the Western world claimed that all religions deprive man of the possibility of being an active subject on earth and that a person who believes that all his/her actions are known and determined cannot be truly free. This point is actually one of several important issues that contemporary atheism raises against theism. These debates have also reached the Islamic world and the issue continued to be addressed with similar arguments. At its core, each of these claims rests on the assumption that Islam's conception of the human being leaves no room for individual freedom. Although the problem has different aspects such as fate and theodicy, one of the most striking aspects of the problem is the question of whether man has the right to reject Islam as well as the right to enter Islam by one’s own free will. It is important to answer this question. Because some practices from the early period of Islamic history and the assumptions that apostates should be killed according to certain conditions, which are accepted as an established jurisprudence in Islamic law, have provided important opportunities for anti-Islamic ideas and ideologies. This article shows how the issue has been dealt with in the classical literature, while at the same time suggesting solutions on how to approach the phenomenon of conversion today. In addition, the study will show that the issue is dealt with in the context of public security in the fiqh literature, and therefore, the current cases of conversion or apostasy do not fully correspond to the discussions in the classical period. (shrink)

The research analyzes the process of formation of the ethics committee as a new institution in the system of regulation of genetic research. The external factors of this process are the increasing digitalization of medical and research practices, as well as the special situation that is developing in the field of genomic research and the use of genetic technologies, where issues of philosophy, jurisprudence and administration have generated many fundamentally new, and sometimes unexpected contexts. The author shows the similarity (...) and difference of approaches to the inclusion of the ethics committee in the national regulatory systems of different countries and determines the prospects for further integration of the new institution into normative and administrative-regulatory and law enforcement practices. The research applies all the main methods of system analysis and structural and functional analysis, as well as the comparative legal method. At the stage of generalization of empirical material, the author turns to the means and methods of philosophical phenomenology and phenomenological sociology. The study revealed that the ethics committee may have different institutional and regulatory functions in a variety of management and legal systems. Being hybrid in nature, the ethics committee performs various functions, and in various state legal systems and traditions it can combine elements of legislative, executive and judicial power. At times, the ethics committee may go beyond the scope of both a purely administrative and exclusively legal regulator. All this indicates that the integration of this institution into the legal system and into a variety of social practices is far from being completed. (shrink)

Muslim women's rights have been a topic of discussion and debate over the past few decades, and with a good reason. Islamic Law is considered by many as patriarchal and particularly oppressive to women, and yet there are also others-Muslim women-who have rigorously defended their religion by claiming that Islam is the guarantor par excellence of women's rights. A big question begs to be answered: is Islam particularly oppressive to women?The Qur'an has addressed women's issues fourteen hundred years ago (...) by creating certain reforms to improve the status of women; however, these reforms do not seem to be practiced in Muslim societies today.1 How is this so? I contend that Islam, as revealed to Muhammad, is not oppressive to women; rather, its interpretation, in so far as it is enacted in the family laws and everyday living, is patriarchal and hence needs to be examined.2 The goal of this work is to discuss what the Qur'an says about certain problems which gravely affect Muslim women, specifically: 1. gender equality 2. polygamy 3. divorce and the concept of nushuz. (shrink)