The present issue will deal chiefly with Islamic Law, placing special emphasis on five major issues. These lie in the sources of Islamic Law, its interpretation, economics, its finance as well as the translation between it and other laws written in English.
Issues Related to the Qurʾān and the Interpretation of Its Legal Contents
Professor Abdul-Hakim Almatroudi (University of London, United Kingdom), addresses the Qurʾān as one of the primary sources of Islamic Law, placing special emphasis on the fact that the Qurʾān is interrelated in nature such that its non-legal verses do support its legal issues. He claims that even though a large proportion of the Qurʾān lacks any explicit or implicit legal provisions, it, however, helps establish and support the system of Islamic Law. The contributor has arrived at this conclusion through carrying out profound analysis on the relationship between legal verses and those which do not comprise any legal rulings, assessing, at the same time, certain major themes, namely God, the Prophet and his message as well as the present life and the hereafter.
Dr. Mustafa Shah (University of London, United Kingdom), focuses on a study of the corpus of variae lectiones (Qurʾānic readings) and role that differences among concomitant or two-fold readings played in the interpretation of law. Reviewing the historical processes associated with the textual transmission of the Qurʾān, the contributor assesses the view that these readings were the product of attempts to circumvent legal inconsistencies in the juridical teachings of the Qurʾān. He explores, through an examination of the historical framework of the origin of variae lectiones, and by reference to early literature of grammar, the way jurists interpreted such material. The contributor also reviews different attitudes concerning types of variae lectiones which classical scholars viewed as being anomalous (shādhdha).
Dr. Ramon Harvey (Cambridge Muslim College, United Kingdom), addresses the oral transmission of the Qurʾān, which gives rise to the development of a reading tradition, which leads to diverse vocalizations made on the basis of the main Qurʾānic text of the ʿUthmānī manuscript. Ten readers were chosen by Ibn Al-Jazarī (d. 833/1429) to represent such reading tradition, while the readings of these ten readers are still considered canonical until present. Al-Kisāʾī (d. 189/805) is one of these ten readers, who has been known by his deep focus on the Qurʾānic grammar, compared to the other readers. The contributor discusses the process of selection particular to Al-Kisāʾī when having to choose a specific reading amongst numerous types of readings. He utilizes for his analysis a sample comprising fifty cases in which there are differences between Al-Kisāʾī’s reading and those of the other readers. The contributor claims that it is possible, through carrying out a comparison between Al-Kisāʾī’s reading and the notes given by classical scholars of linguistics of the Qurʾān, to suggest a typology of possible rationale behind Al-Kisāʾī’s differences in his reading from the readings of the others. Such differences in his reading from the readings of others are clearly grounded in grammatical preferences and are consistent. Analysing a range of his readings with the aim of interpreting Islamic Law would further help present the subtlety of his work.
Mr. Shafi Fazaluddin (Solicitor of the Senior Courts of England and Wales, qualified 1998, United Kingdom), tackles the concept of conciliation ethics in the Qurʾān as a crucial aspect in Islamic Law, which leads to Islamic legal rulings. It forms an important part in the legal system of Islam, settling disputes among litigant parties. The contributor points out that traditional literature specific to the concept of conciliation in the Qurʾān has often been inclined to the discussion of the process of reconciliation, though Western scholarship has little or no interest in this field. He, examining the notion of conciliation ethics in the Qurʾānic texts, questions its constituents, scope, its focus and purpose. Carrying out a survey on the whole Qurʾān, the contributor claims that the concept of conciliation is not at all restricted to Qurʾānic texts that contain the term ‘ṣulḥ’, rather it is deemed a pervasive notion that exists within social relationships. It is particularly accomplished through good behaviours, positive attitudes, dispute avoidance, etc.
Abductive Legal Reasoning and Islamic Economic Thought
Dr. Valentino Cattelan (University of Florence, Italy), pinpoints, through the use of Alice in Wonderland as a hermeneutical device in an attempt to search for the logic of Islamic jurisprudence, a crucial divergence in the implementation of abduction as a primary element of inference in Islamic Law between Western and Islamic legal thinking. Specifically, the contributor, through close examination of the relation between law and fact in symbolic terms, accentuates the fact that while Western legal thinking is characterized by having a dichotomy between fact and law, Islamic jurisprudence presents a strong connection between the ‘real’ and the ‘right’ where exercising personal reasoning ‘ijtihād’ in understanding Sharīʿa often leads to the real legal ruling in God’s creation. Based on the foregoing, He claims that if the law is prescribed by Sharīʿa, not only is the legal ruling derived from primary legal sources, but the right shall also be justified by way of a verdict clarifying the fact that has given rise to the law to be implemented in the given instance. Therefore, abduction, the contributor asserts, can offer an account for the nature of Islamic jurisprudence, its ramifications and its function of the tradition as being important factors of the logic of the legal system of Islam. Uncertainty, however, does exist concerning the compatibility between logic of Islamic Law and deductive logic of Modern State Law, which is viewed as a product of Western legal thinking.
Mr. Sami Al-Daghistani (Double PhD candidate, Leiden University and WWU Münster, visiting scholar, MESAAS Columbia University, The Netherlands and Germany), addresses the concept of maṣlaḥa and its connection to the area of Islamic legal and economic thought as discussed by eminent Muslim scholars both in the past and at present time. The contributor indeed seeks to tackle a number of issues, such as the way in which maṣlaḥa may be embodied within Islamic legal reasoning, the type of meaning relayed by maṣlaḥa, the economic and/or legal reading it postulates and the notion of whether or not law, ethics and scriptural sources play an equal role in the development of the concept of maṣlaḥa in economic terms. The concept of maṣlaḥa has always been part of the theory of Islamic Law, but has seldom been tackled within the context of economic thought. The contributor offers a historical account of the legal system of Islam and the concept of maṣlaḥa within the context of Islamic economics, placing special emphasis on the work of AlGhazālī. He then investigates the Islamic economic jurisprudence and Islamic economic theory as understood and discussed by influential theoreticians of economic studies in Islam, with credence lent to the view that Islamic economics is strongly linked to the essence of Islamic legal reasoning. The contributor makes use of Mohammad Al-Sadr’s thoughts in viewing Islamic economics as a principle and not a science. He examines legal foundation of Islam with its normativity, casting lights on the notion that legal norms have been included within Islamic economic reasoning, an idea which resides in the concept that patterns of Islamic Law have been constructed socially alongside certain features of Islamic economic reasoning. He claims that in spite of the fact that literature of Islamic Law and that of Islamic economics are founded on primary Islamic legal and economic sources ‘The Qurʾān and Prophetic Traditions’, they, however, lie in ethical cosmology which is even more than just being an exact theological matter.
Custom as a Source of Islamic Law and Juristic Views of an Early Andalusian Mālikī Jurist
Dr. Abbas Mehregan (Independent Scholar, Germany), deals with the relationship between law and society and its crucial role played in the formulation of women’s law within Islamic legal system from the sociological point of view. The contributor examines the economic, political and social structures specific to women’s law in the Arabian Peninsula in the pre-Islamic era, presenting certain laws based on Arabs’ customs which were rejected by Islamic Law and others which were modified and then accepted by Islamic jurisprudence. Certain legal issues have been particularly tackled, such as marriage, polygamy, rights to inheritance, blood money, the process of testimony and accepted forms of evidence in legal cases, the system of giving fatwā, the exclusion of women from the judiciary, rules concerning the veil and right of guardianship of children in the case of divorce. The contributor claims, through close examination of the way in which the Prophet Mohammad (peace be upon him) introduces Islamic Law, that custom should be regarded as a source of Islamic Law alongside other commonly known legal sources of Islamic jurisprudence.
Dr. Daniel Vazquez-Paluch (House of Wisdom, United Kingdom), collects the juristic opinions held by an early Andalusian jurist: ʿĪsā ibn Dīnār (d. 212/827), in an attempt to explore and analyse his legal views and thoughts. The contributor closely examines his detailed and explanatory notes and comments written on Almuwaṭṭaʾ as documented in the legal juristic issues which he had elaborated on in Mustakhraj by Alʿutbī (d. 255/869), beside profound analysis of his lengthy discussion with his student Ibn Muzayn. There has been a great focus on the Mālikī Muwaṭṭaʾ in Alandalus since a very early era where the Mālikī School of Law had been the dominant legal authority and Ibn Alqāsim had been the reliable interpreter of the Mālikī Madhhab. The contributor claims that the foregoing represents challenges to Calder’s dating of the Mālikī Muwaṭṭaʾ and Melchert’s dating of Western Mālikism.
Islamic Finance and Legal Translation Between English and Arabic
Dr. Fahad Al-Zumai and Dr. Mohammed Al-Wasmi (Kuwait University, Kuwait), address the industry of Islamic finance as being relatively new, though growing rapidly to be the prevailing finance industry in the Middle East as well as North Africa. Islamic finance industry is chiefly built upon Sharīʿa provisions, including the prohibition of usury. The contributors point to the emphasis accorded by Islamic Law scholars to the ethical dimension of Islamic finance industry to the extent that it can be viewed as a fruitful solution to the de facto crony capitalism. The present financial crisis has created crucial challenges to the industry of Islamic finance, but has, at the same time, given this industry a golden opportunity to merge into prevailing finance and be an influential industry. The contributors evaluate the industry of Islamic finance in relation to the current financial crisis, in an attempt to explore whether or not the ethical foundation of Islamic finance institutions can distinguish these institutions from conventional finance institutions. They offer a relatively succinct account of finance in Islam, followed by discussion of the governance framework structure of Islamic finance institutions and the crucial role played by the organs thereof. A comparison is made between the ethical construction of Islamic finance institutions and that of conventional finance institutions. The contributors claim that there exists a great ethical failure of the present universal financial system in coping with the current financial crisis.
Dr. Hanem El-Farahaty (University of Leeds and University of Mansoura, United Kingdom and Egypt), addresses the concept of legal translation between English and Arabic as there has been a global pressing need for legal translation due to asylum seeking and immigration reasons, a matter which demands further research to be conducted on this particular field. Owing to the fact that there are clear differences between legal English and legal Arabic at diverse levels, different translation problems often arise when a particular legal text is rendered between the aforementioned languages, ranging from linguistic problems, culture-specific problems to system-bound problems. The contributor examines different ways of rendering lexical elements between legal English and legal Arabic. She explores and analyses different problematic areas in legal translation between English and Arabic, suggesting plausible strategies in coping with such acute translation areas. These include culture-specific and system-bound terms, specialized terms, archaic terms, doublets as well as triplets. The contributor tackles the common problems confronting the translator when rendering a particular legal text from English into Arabic and vice versa, with some light cast on the lexical problems encountered in English–Arabic and Arabic–English legal translation. Also, she presents certain procedures that need to be followed when rendering legal terms between English and Arabic. The contributor claims that the translation of lexical legal terms between English and Arabic demands strong acquaintance with the linguistic and legal systems of both English and Arabic, professional training, well-defined corpora and up-to-date electronic dictionaries.