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Abstract

This article studies a collection of legal terms and their interpretation by Jordanian courts in matters related to the Šarīʿa. It outlines the method through which the meaning of terms is determined by returning to Islamic foundations of jurisprudence (uṣūl al-fiqh), a source specified by Jordanian law which can be used to define legal terms as well as the context, scope, and application of legal texts. The article examines a set of judicial interpretations (iğtihād) of terms which have carried different points of view in both courts of first instance and appeals. The methodology of the study combines between theoretical discussions derived from Islamic foundations of jurisprudence (uṣūl al-fiqh) and the application of interpretive principles through a focus on determining the purpose of the legislator. The article highlights the role of the contemporary Muslim judiciary in developing personal status law through the interpretation of terms that carry multiple meanings and explores the essential principles relied upon in this process, establishing a path for future legal reform.

In: Arab Law Quarterly

Abstract

This study deals with the effect of ġarar (uncertainty) and jurisprudential necessity on the Sharīʿah permissibility of commercial insurance contracts, using an analytical and critical approach. The study clarifies the meaning of ġarar, and its effect on contracts, by verifying the effective cause of ġarar, determining its degree, and ascertaining the rationale for its prohibition. The criterion for differentiating between trivial and substantial ġarar is discussed, as well as the views of jurists who permit insurance contracts through a holistic view approach, contrary to the traditional view. The study distinguishes between ḥāǧah (necessity) in the jurisprudential sense, general necessity as expressed in the objectives of the lawgiver, from the concept of ḍarūrah (essentiality). Furthermore, the study highlights an important jurisprudential rule that has direct effect on the permissibility of insurance contracts, i.e., ‘what is forbidden for the prevention of the means (of corruption) is permitted for the preponderant interest’.

In: Arab Law Quarterly

Abstract

This article aims to discuss the effect of motive of organised tawarruq parties on its permissibility and to shed light on the importance of considering the overall objectives and goals of Sharīʿah when conducting transactions. An analytical and deductive approach is used to examine the reality of organised tawarruq (al-tawarruq al-munaẓẓam) and the motive behind it as well as the validity of reference to and conception of the texts used in support thereof. The discussion concludes the presence of misinterpretations of the Sharīʿah texts referred to in support of organised tawarruq, as well as obvious overlooking of the motives behind it, which should have led to the exclusion of organised tawarruq from the permissible modes of Islamic finance. This article provides a comprehensive view of organised tawarruq, in terms of its motive, form and substance, in order to assist in reviewing the capability of its use as a financing tool.

In: Arab Law Quarterly

Abstract

The study dealt with the usages of common /l/ whether separated or attached. It tried to induce the meanings of /l/ linguistically and highlighted its uses in Al-Ankabūt Chapter. The study highlighted the relationship between the topics tackled in the chapter and the meanings and uses of /l/. The study eventually came to conclude that the different meanings of /l/ that reached 30 meanings for some, can actually be presumed to 6 meanings, all appearing in Al-Ankabūt Chapter in 23 verses; the non-functional /l/ in its 5 versions is initiative /l/, and it took place in 25 verses, all of them appealing to emphasis. Swearing /l/ is found in 3 verses, while Responsive /l/ that follows ‘without’ appeared once for emphasis, and Affirmative or imperative /l/ also used once for the sake of emphasis. This study also concluded that the use of /l/ in different meanings at once is possible as long as the meanings are not opposed.

In: Al-Bayan: Journal of Qur'an and Hadith Studies