Search Results

This book shows 19th and 20th century Islamic Law as a dynamic process casting its net into the 21th century and shaping of major constitutional and legal developments in the Arab and Muslim worlds. The introduction and nine chapters of this volume provide insight into the ongoing transformation of the Shari'a into the law of a nation-state. The book contains studies on Marriage and Divorce, Contract Law in the new Civil Codes of Egypt, Iraq and Syria; the ideological springs of Muhammed 'Abduh's visionary program for the reconstruction of Shari'a, the place of Islamic law in the judicial doctrine and policy of the Egyptian State and Legal Capacity.

Abstract

In his attempt to bring classical Islamic jurisprudence closer to the legal and judicial norms of modernity, the Egyptian master-jurist ʿAbd al-Razzāq al-Sanhūrī identified a structural similarity between the ḥanbalī doctrine of intention (nīya) in contracts and contemporary French law, which upholds the legal effect of the driving motive in validating or nullifying a contract. Sanhūrī demonstrated that the same pietist ethical dimension of the medieval Church-jurists' theory of subjective motivation, which is the historical source of modern French and Egyptian judicial practice, is also present in the Islamic legal tradition. Through a comparative and critical analysis of the major Sunnī law schools' doctrines of intention in contracts, Sanhūrī corrected Chehata's conclusions of 1936. It emerges that in contrast to ḥanafī and Shāfiʾi jurisprudence, which ignore ultimate motive when it is not apparent from the terms of the contract, ḥanbalī and Mālikī law stress the licitness of the subjective cause of the contract as a sine qua non condition for its validity.

In: Islamic Law and Society

Abstract

A semantic equivalence between the Qur'ānic terms safīh and mubadhdhir underlies classical Islamic law's interdiction (hajr) of the spendthrift. The Qur'ān, however, is not explicit in endorsing the semantic equivalence of these two terms. To bridge this semantic gap, Muslim jurists exploited an opposition in Arabic usage between safah and rushd, extending the meaning of safīh from "one who lacks judgment" to "one who squanders his wealth". Subsequently, the safīh became the object of disagreement among the Hanafī master jurists: Abū Hanīfa placed a greater value on the sane adult's legal autonomy than on the preservation of his wealth; Abū Yūsuf and al-Shaybānī (together with Mālik, al-Shāfi ī and the Hanbalīs) held for the restriction of the adult prodigal's legal capacity. Ibn Hazm revived Abū Hanīfa's position by undertaking a lexicographical critique of the metaphorical extension of the meaning of safīh and by upholding the Muslim ideal of modest living.

In: Islamic Law and Society
In: Islamic Legal Thought
A Compendium of Muslim Jurists
In Islamic Legal Thought: A Compendium of Muslim Jurists, twenty-three scholars each contribute a chapter on a distinguished Muslim jurist. The volume is organized chronologically and it includes jurists who represent the formative, classical and modern periods of Islamic legal thought. Each chapter contains both a biography of an individual jurist and a translated sample of his work. The biographies emphasize the scholarly milieu in which the jurist worked—his teachers, colleagues and pupils, as well as the type of juridical thinking for which he is best known. The translated sample highlights the contribution of each jurist to the evolution of both the method and the methodology of Islamic jurisprudence. The introduction by the volume's three editors, Oussama Arabi, David S. Powers and Susan A. Spectorsky, provides a concise overview of the contents.

Contributors include: Oussama Arabi, Murteza Bedir, Jonathan E. Brockopp, Robert Gleave, Camilo Gómez-Rivas, Mahmoud O. Haddad, Peter C. Hennigan, Colin Imber, Samir Kaddouri, Aharon Layish, Joseph E. Lowry, Muhammad Khalid Masud, Ebrahim Moosa, David S. Powers, Yossef Rapoport, Delfina Serrano Ruano, Susan A. Spectorsky, Devin J. Stewart, Osman Tastan, Etty Terem, Nurit Tsafrir, Bernard G. Weiss, Hiroyuki Yanagihashi.
In: Islamic Legal Thought
In: Islamic Legal Thought
In: Islamic Legal Thought