This paper studies the trends in the interpretation of Islamic Law in India with particular reference to the Fatawa literature of Deoband. It relates mainly to two important concepts in the interpretation of Islamic law: bid'ah and ijtihad. The introduction gives the historical background of the fatawa literature and analyzes the concepts of bid'ah and ijtihad, postulating working definitions for these concepts. The first chapter summarizes and the second analyses the arguments in the relevant fatawa. The study concludes that the relevant inventions and new social practices were not considered bid'ah and that the reasoning in these fatawa was based on analogies made to similar previous cases in fiqh literature. Such interpretations adhered strictly to the letter of the law.

This thesis studies the attitudes of the religious scholars associated with the dayah, the traditional institution of religious learning in Aceh, Indonesia, towards issues of the modernization of Islamic law. In the history of Islamic society in Aceh, these scholars, the 'ulama' dayah, have shown great initiative in guiding their society as it sought solutions to various problems. Their response was not confined merely to religious matters but also extended to the economic, political and social problems. / The impact of modern science and technology has led to many changes in economics, agriculture, medicine, and other fields. All these changes have to be evaluated in terms of their status in Islamic law, because Muslims have always sought to lead their lives in accordance with Islamic teachings. The 'ulama' dayah, have contributed to meeting the challenge of resolving such problems. In formulating their decisions, the 'ulama' dayah usually refer to the standard texts of the four classical schools of Islamic law. The reliance on classical texts is justified by their conviction that present-day 'ulama' are unable to exercise ijtihad independently since they lack the qualifications which have been traditionally demanded of a mujtahid.

This thesis examines whether Muslims qua Muslims can regard as legitimate the demands of citizenship in a non-Muslim liberal democracy. This involves asking whether requirements such as living in and being loyal to a non-Muslim state, regarding non- Muslims as political equals with whom one might co-operate socially and politically, contributing to non-Muslim welfare and participating in non-Muslim political systems can be regarded as legitimate practices. It is an exercise in what John Rawls referred to as 'conjecture', or the attempt to examine and argue for the existence of an overlapping consensus between a liberal political conception of justice or citizenship and a particular comprehensive ethical doctrine. Chapter One examines the status of conjecture in political theory and the place of the idea of an overlapping consensus in liberal justification, followed by a proposal for a methodology for this type of comparative political theory. Chapter Two deals with the precise demands liberalism places on citizens, and the particular concerns of Muslims living in non-Muslim states. I show that before we can discuss the central liberal concerns of justifying state neutrality and individual freedoms to revise one's conception of the good, it is necessary to look at a series of questions related to Muslim belonging, loyalty and solidarity in a non-Muslim state. I then present and defend a conception of liberal citizenship in response to certain challenges and concerns of Islamic political ethics. Chapters Three through Five then deal with the range of Islamic responses to the demands of liberal citizenship as I presented them. Chapter Three considers the question of residence in a non-Muslim state and whether the most common justifications for such residence can be considered compatible with liberal conceptions of a well-ordered society. Chapter Four examines the problems of political obligation and loyalty - whether Muslims can in good faith meet their obligations of loyalty to both the global community of fellow believers and their state of citizenship. Chapter Five deals with questions of recognition and solidarity - whether Muslims can recognise non-Muslims as political equals, form relationships based on justice, contribute to their welfare and participate in a common political system. All three chapters demonstrate that very strong and authentically Islamic arguments exist for accepting all of the above demands of citizenship, many being found even in medieval works of Islamic jurisprudence. Crucially, Islamic arguments shown to support the idea of an overlapping consensus also vindicate many of the claims of Rawlsian political liberalism to be a more appealing form of liberalism to non-liberals precisely because of its abstention from claims to metaphysical truth.

Having been influenced by the Muslim reformist ideas championed by Muhammad 'Abduh and his colleagues, Hamka attempted to disseminate and ameliorate the reform ideas in his country, Indonesia, through the means available to him; that is by preaching and writing. He was among the most prolific contemporary authors, having written 113 books including his monumental Tafsir al-Azhar. In this commentary, Hamka has probably included the sum of his ideas particularly those pertaining to religious aspects. With regards to the religious aspects, he mostly discusses the problems of theology, sufism and law. Hamka's conception of the law portrays his challenge and struggle towards the abolishment of taqlid (uncritical acceptance of the decisions made by the predecessors) and the implementation of ijtihad (personal opinion). In addition, his legal comments and interpretations are quite different from many of the comments made by sectarian commentators, who saw in tafsir a forum for defending their schools of thought. However, Hamka steered away from any school of thought and tried to be as objective as possible in his work, an attempt reflected in his method of interpreting the problematic legal verses. Moreover, he did not limit himself to a single method of interpretation. On the contrary, he availed himself of both the tafsir bi al-ma'thur method (interpretation derived from the Prophet, the Companions and the Successors) and the tafsir bi al-ra'y method (interpretation based on reason).

Muhammad ibn Idris al-Shafi'i (d. 204 H.), the subject of the present thesis, was a Muslim legist who played a central role in the development of Islamic law. He wrote the first treatise on jurisprudence in Islam, a work in which he discusses the nature and sources of Islamic law and develops a legal methodology designed to interpret those sources. Al-Shafi'is legal theory is based on two principles: an insistence on following the scripture and traditions and a restriction on the use of reason. Furthermore, al-Shafi'i established the hierarchy of the four sources of law: the Qur'an, Sunnah, ijma' and qiyas. / In the centuries that followed, al-Shafi'is legal theory was to have a great influence. The Hanbali and the Zahiri schools of law arose in an environment that was considerably influenced by al-Shafi'i and his followers. The founders of these two schools strictly followed revelation and restricted the use of reason: Dawud al-Z ahiri even refused to consider qiyas as one of the sources of law. Although not all aspects of al-Shafi'is theory gained acceptance among later scholars, these scholars nevertheless owe much to al-Shafi'i for his efforts at systematizing the method of deriving law.

This thesis looks at the concept of bid`a as defined by al-Shat&dotbelow;ibi (d. 790/1388) in his al-I`tis&dotbelow;am. It begins by setting this definition in the context of his time, which was an era of rapid change, and in the context of the criticisms leveled at al-Shat&dotbelow;ibi by those who accused him of introducing innovations into the law. His analysis of bid`a was written in response to this situation and it was also an exercise in reformulating the concept on the basis of a strict legal methodology. Our investigation therefore includes a survey of the fundamental features of bid`a, defined by al-Shat&dotbelow;ibi as having two aspects: al-bid`a al-h&dotbelow;aqiqiyya (real bid`a) and al-bid`a al-id&dotbelow;afiyya (relative bid`a). This taxonomy will in turn be considered in the light of his division of the Shari`a into `ibadat (religious matters) and ` adiyyat (mundane matters). Furthermore, it also analyzes al-Shat&dotbelow;ibi's distinction between the basic character of mas&dotbelow;lah&dotbelow;a mursala and istih&dotbelow;san on the one hand, and bid`a on the other. Having concluded that the latter is essentially prohibited, he was concerned to validate the first two, which he realized were vital sources of the law. The investigation will also investigate al-Shat&dotbelow;ibi's rejection of the possibility that bid`a could be divided into good and bad, and his objection to assigning the five legal values to this concept.

The Saudi taʿawuni insurance model, despite claiming to be compatible with Islamic transactional rules, in fact violates the prohibition of gharar (risk) through its commercial structure. The study investigates the ways in which gharar (risk) is accommodated in modern insurance models. It argues that the most appropriate solution to comply with the doctrine of gharar, is to de-commercialize the taʿawuni model by adopting the mutual insurance model, which is capable of satisfying the requirements of sharia relating to the prohibition of trading in gharar

The conflict between adat law and Islamic law is still a current issue in today's Indonesia. It is rendered even more controversial because it deals with the spheres of family law, marriage law and the inheritance system in particular. This is exacerbated by the fact that Indonesia is home to such a wide variety of social systems. Family structure patterns range from patriarchy to matriarchy and every shade between, with each system being supported by a nexus of indigenous or adat laws. To complete the confusion, there is the residual influence of Dutch policy. / Of the many attempts that have been made to resolve the situation, the contribution of Hazairin (1906--1975) deserves particular attention. Realizing that fiqh or Islamic law is the product of another place and time, he sought to accommodate it more to the realities of Indonesian Muslim society. For him this meant abandoning the Dutch legacy of privileging adat law over Islamic law, and replacing it with what he called a "bilateral system," based primarily on the Qur'an and h&dotbelow;adith. (Abstract shortened by UMI.)

This thesis examines the participation of Armenians in the shari'a courts of the Ottoman Empire from the 16th to the 18th centuries. Scholars have traditionally thought that Armenians in the Ottoman Empire resolved their disputes within their own communities' legal systems. However, new studies of Ottoman court records reveal that Armenians in the Ottoman Empire frequently used the shari'a courts to resolve a wide variety of disputes. There are several possible reasons to account for this frequent shari'a court use by a community that theoretically had its own courts. The first is that the Armenian millet's legal structures were perhaps exaggerated or misunderstood by previous scholars. The second is that Islamic law was not as unfavourable to dhimmis as presumed and that the shari'a courts were adequate for their needs. Finally, the way the courts applied Islamic law was sometimes advantageous to certain dhimmis.

Governments play many roles in a society, some political, some social, and some economic (Tanzi, 1997). These roles are guided by a notion of common good and constrained by availability of finances. This interaction between ideology and economics lies at the heart of public finance. The central question examined in this dissertation is if, how, and to what extent the goals, norms and values implied in the Holy Qur'an and sunnah result in a mode of government fiscal organisation similar to or different from the received from the received Western model. / The methodological framework employed uses the tenets of Islamic socio-economic justice as the theory-choice criteria to analyse and choose among multiple Western social-scientific theories on a selected topic and then build further upon them. Thus the Islamic call for financing redistribution through zakah translates into a levy on net worth (beyond a stipulated minimum) and a charge on earned income. For general taxation, however, any economically feasible tax is admitted as long as the aggregate burden of general taxation is not regressive. On financing public expenditure in excess of taxation, the Islamic prohibition of fixed interest and appreciation of profit and loss sharing arrangements is found to impose commercial discipline on state activities thereby ameliorating public choice concerns on government failure. Alternatives such as in-kind finance, public-private partnerships, and ijtihadi instruments are proposed. / Combining these findings into one theory produces an Islamic parallel to the Keynesian solution for demand management that depends on charge in the mix of taxation and the mode of (commercial and) deficit finance to motivate efficient utilisation of wealth and its circulation through participatory finance. / Moving from the normative to the positive analysis, it is observed that the principles of fairness in fiscal management are compromised by a wide margin in many jurisdictions. This recognition provides a link with the pivotal role that governance plays in social and economic development. To this end, it is noted that Islam emphasises on cultivating internal restraint against corruption through developing a clear higher-order preference for a catalogue of values and virtues so as to arbitrate among competing first-order desires. In comparison, the Western strategy focuses on appropriate institutions that harness incentives toward minimising opportunities and enticement for corruption. The conclusion reached is that both ingredients are essential for good governance and by implication, for the success of the taxation and deficit finance schema developed in this thesis. / Drawing together the analyses presented on taxation, deficit finance and governance produces an Islamic agenda that calls Muslin nations to put their own houses in order. This means an urgency to work on multiple fronts: rethinking governance, re-establishing supremacy of law, reforming taxation in line with domestic income and wealth profile and economic priorities, facilitating appropriate investment profile and climate, and reconsidering expenditure priorities. To the end we have highlighted some constraints and made detailed proposals. / Thesis (PhD)--University of South Australia, 2003.