Inaug.-Dis.--Bonn. / Vita. Includes bibliographical references.

Thesis (Ph. D.)--University of Chicago, The Divinity School, August, 2001. / Includes bibliographical references. Also available on the Internet.

No description available.

The operationalization of Islamic criminal system by some Muslim jurisdictions in the post-colonial era raises many human rights questions. On the one hand, the system is perceived as inhuman, cruel and degrading, and on the other, as gender discriminatory and iniquitous. This thesis focuses on the second part of this critique. Discrimination on ground of gender in Muslim states has been one of the major human right issues that engage scholars in heated debates on whether or not gender justice exists under the Islamic criminal regime. In relation to the offences of homicide and bodily hurt, discriminatory principles are often justified on economic argument. Interestingly, these principles are characterised as divinely ordained, thus unchangeable to eternity. However, the interplay between the divine and the human elements in the development of the regime is mostly ignored and it is often difficult to ascertain from where such principles emanate. This thesis examines the classical theorization, the Sharīʿah-inspired penal codes of Pakistan and the 12 Northern states of Nigeria, as well as case law, with a view to ascertaining whether the so-called gender justice deficit is intrinsic to the divine or is mere human construction. The findings of the thesis reveal existence of an egalitarian tone in the divine. The divine however has left considerable room for human agency to employ construction that best suits its circumstances. This enabled the classical jurists to differ on many issues that raise gender concerns in the modern world. Biological determinism plays a significant role in the construction of the divine. What appears to influence the jurists include cross-contextual analogy by creating linkages between unrelated themes and infiltration of customary practices. The thesis posits that the problem of gender justice under the regime can best be addressed from within the system. This is possible when contemporary Islamic scholarship engages in thorough intellectual analysis of the classical fiqh literature. This is likely to appeal to Muslims in whose territories the law operates. The thesis therefore suggests participation of all stakeholders, including women, in criminal policy formulation. This would entail employing affirmative action measures that would guarantee participation of women in both legislative and judicial process.

No description available.

There is a perception, held not only by scholars in the field but by many Muslims as well, that Islamic law in Indonesia is strongly colored by "non-Islamic" local custom (adat). Historically, this notion has given rise to a number of movements which have sought to ensure that religious beliefs and practices be restored and brought into harmony with the primary sources of Islam, the Qur'an and Sunnah. One of these movements was led by Ahmad Hassan (1887-1958), acknowledged by many as a great scholar and a tireless advocate of the need for renewal (tajdid) and reform (islah). This study analyses the significance of Hassan's role in the movement for Islamic legal reform and examines in particular his legal theory (usul al-fiqh) and its application to problems of substantive law (fiqh). In terms of Indonesia (and perhaps other regions as well), this is a new approach; for few works on Islamic law in Indonesia concerned with either the Islamic judicial system or substantive law devote any significant attention to usul al-fiqh, which, in fact, provides the foundation for these institutions, not to mention other aspects of Islamic teaching as well. / As a reformer, Hassan was sometimes led to adopt bold, even extreme positions. He attacked his traditionalist opponents for placing too much faith in the doctrines of particular legal schools when seeking solutions to the problems faced by Muslims. Too often this led them to base their decisions on individual opinion, which placed them at a doble remove from the two primary sources. Instead Hassan advocated constant ijtihad, or at least ittiba', in the belief that the door had never been shut on direct analysis of scripture. In adopting this position, Hassan developed a sound, consistent and text-based approach to usul al-fiqh that was adopted after his death by his followers and students. Indeed, this approach has even had a substantial effect on his opponents, whose stance has changed subtly to reflect many of Hassan's concerns.

This thesis investigates past and present understandings and applications of khul', synthesizing existing scholarship on the subject as well as H&dotbelow;anafi juristic doctrines. As khul' is part of a larger concept, namely, divorce initiated or approved by women, attention will also be given to the other options that Islamic law---or, on some points, cultural practices---grants women in order to obtain release from the marital bond. A comparative analysis between the application of marriage and divorce laws under the Ottomans and in contemporary Egypt will then be conducted with a view to shedding light on the effect that the rise of the nation-state has had on gender inequality.

The Islamic prohibition of riba is unequivocal but textually not explicit. The traditional and liberal theological, juridical and philosophical hermeneutical effort has addressed it comprehensively but not conclusively. This inconclusiveness is due to the absence of the identification of the distinctive characteristic of riba, resulting from the use of limited scope pre-defined juridical and economic paradigms employing a contextual exoteric approach, excluding the broader esoteric content. This promotes an internal hermeneutical imbalance between the variables of meaning, application, rationale, underlying cause and consequence of riba, preventing the full convergence and congruence of these narrowly defined paradigms with the broadly implied paradigm in the Qur'an and the Sunna, and obstructing the promulgation of the prohibition. The resolution of this hermeneutical gridlock, predicated upon the discovery of the distinctive rationale and the derivation of the underlying cause of riba prohibition, has a direct bearing on the expansion of scope and unreserved acceptance of the prohibition.

The notion of usury/interest, subsumed under the Arabic term riba and Hebraic neshekh/marbit, has been the center of human attention throughout recorded history, but only as an exclusive economic paradigm subject to toleration, limitation or prohibition. Yet, in a clearly disproportionate treatment, all pristine major world religions consider this "economic act" as the greatest of sins, which, in Islam, additionally attracts the most graphic other-worldly punishments at the extremes of the spectrum. Economic usurpation of greater severity, e.g., theft by stealth and robbery by force do not attract as severe a Scriptural punishment as does "interest-taking" by consent, clearly implying, both scripturally and linguistically, that this seemingly exclusive "economic act" is in fact a sin of greater theological proportions. Yet, casuistry and a non-philosophical approach have so far prevented the extant Judaic, Christian and Islamic scholarship from assessing the depth and breadth of the theology at stake here. Utilizing a semiotic methodology and a philosophical/theological approach, and drawing out the glaring deficiencies of the current scholarship, this work posits that the Arabic riba /Hebraic marbit (growth), by virtue of its intrinsic characteristic of intra-activity as against its binary opposite of inter-activity inherent in bay' (exchange), causes self-emanation, self-subsistence and ex-nihilo creation, which, being exclusive Divine attributes, not only render marbit/riba an act of idolatry/polytheism (Arabic: shirk), but also thereby extend it to all spheres of human action. This diagnosis not only harmonizes the severe ordained punishment with the gravity of the sin, it also bestows perfect hermeneutical calibration to the whole riba paradigm for all monotheist religions, identifying the universal divine law: intra-activity (riba) ---lack of dependence---for the Master (Rabb) and inter-activity (bay')---dependence---for the servant ('abd). This yields the new critical theory of normative human behavior prescribed by "Islam"---the din al-fiṭra, which calls for total human conformity to the design and purpose of human creation in pairs (tathniya: duality), reserving riba (tawḥid : singularity) for the One whose divine attribute it is.

This study aims to discuss the question of foreign influences on early Islamic law. This issue has been dealt with from various perspectives. Some scholars claim that Roman law was the predominant influence in formulating Islamic law, both in its legal concepts and its application. Certain scholars, however, maintain that the provincial law influenced Islamic law more, arguing that Roman law was not really practiced in former Greek provinces where Islamic law was formulated. Still others argue that Jewish influences are also believed to have shaped the development of early Islamic law, considering that Babylonian schools were situated close to the Hanafi school. / The problem of foreign influences on early Islamic law, however, is a matter of degree only as far as the pre-Islamic Arab traditions are concerned. It is believed that certain institutions derived from pre-Islamic Arabic society, the Qur' an and the traditions of the Prophet provided the early Muslims with a considerable wealth of values, norms and broad principles as well as specific rules which were to guide the Muslims in their legal speculation in order to develop positive law.