The purpose behind this theses is to introduce the doctrine of jihad as a legal concept established in Muslim jurisprudence [fiqh] through the analysis of Arabic primary medieval legal sources and the writings of contemporary Islamic intellectuals. Firstly, its author will focus on the notion of jihad in classical Muslim jurisprudence and then proceed to examine the modern reinterpretations of jihad. The introduction provides and insight into the basic features of the religious law of Islam and its system. The second chapter is concerned with the definition of jihad and siyar in the books of fiqh as a regulatory basis governing the conduct of military expeditions. Then, it reviews the interpretative issues faced by Muslim exegets of the Quran and hadith posed by the application of abrogation mechanism [nasch] and analyses the early writings on jihad with respect to their structure, areas of regulation covered and the use of legal arguments and sources by their authors. The analyzed works include hadith collections of Al-Bukhari, Abu Dawud and Ibn Majja and the books of Malik and Al-Shaybani considered as the first codifications of Islamic laws of war. The third chapter presents the substantive rules of jihad as discussed by ibn Rushd in his legal handbook Bidayat al mujtahid which entails limits on...

LL M. (Commercial Law) / It is believed that Islamic banking and finance is currently the fastest growing system of banking in the world. In 2010, Islamic finance institutions reported an estimated USD 1 trillion in global assets, and an estimated growth rate of 15%.1 Many countries have taken notice of this growth, and have attempted to implement measures that will allow them to best reap their share of the spoils. This dissertation will attempt to explain the nature of Islamic banking, its history and development, as well as the main principles upon which it is based. The dissertation will then compare Islamic banking and its Western or conventional banking counterparts as well as advantages and drawbacks of both systems. The dissertation will attempt to provide an exposition of the current regime in South Africa and its impact on the functions of Islamic banks, as well as providing an explanation of how these banks operate within the South African legal framework. The dissertation will also explore the legal systems and regulation of Islamic banks and other financial institutions in other jurisdictions, and also attempt to provide a guide as to whether the South African position needs reform or whether it is sufficient to take advantage of this growing sector of finance ...

The main purpose of this thesis is to analyze the conception of human rights in Islamic culture and to examine its influence on international relations. The essential method used to complete the analysis is a comparison of conceptions of human rights in western culture and in Islamic culture. This comparison is based on the most important documents involving human rights. Particular examination of different conceptions is posted in the case study of Pakistan based on Sharia and of secular Turkey. The thesis examines the hypothesis based on opinion, that the states practicing Sharia are not able to follow all the human rights as involved in the western conception of United Nations. Thus, position of those states in international relations is not as good as in case of the secular ones. Anyway, while analyzing various sources and factors, the hypothesis was found not as well-founded as it was supposed to be.

A thesis submitted to the Faculty of Commerce Law and Management, University of the Witwatersrand, Johannesburg, in fulfilment of the Degree of Doctor of Philosophy / Ethical investing has become increasingly prevalent in recent years and mirrors a rise in shareholder activism, consumer ethics and corporate social responsibility. Shariah funds are a subset of ethical funds. The rise in popularity of ethical funds has raised questions as to whether ethical funds perform better than conventional funds, and whether ethical funds are riskier than conventional funds. A number of studies have been carried out in different countries utilising the traditional performance measures as well as factor models to determine the risk profile and returns of ethical funds compared to conventional funds. These studies have shown that the results are country specific and hence each country needs to be analysed separately. The aim of this study is to investigate ethical funds (incorporating Shariah funds) in the South African context. The study examines the performance and risk profile of ethical funds relative to conventional funds utilising traditional performance methods as well as the CAPM model and Fama French 3-factor model. Furthermore, the study determines the factors that influence investors to invest in ethical funds and to examine their investment preferences when choosing between conventional funds and ethical funds through a survey of Muslim investors. Finally, the study examines the role of advertising in ethical fund investment and investigates whether the marketing material of ethical funds is aligned to investor requirements by utilising content analysis to compare the fact sheets of various mutual funds for the presence of factors identified as important by investors. The empirical results show that conventional funds outperformed ethical funds with a greater variability of return over a truncated time period. Both ethical and conventional funds were driven primarily by the market return with no clear style bias. In fact, ethical funds had a stronger beta to the ALSI than to the JSE SRI index. The qualitative analysis showed that the sampled investors perceived conventional funds as offering better returns, but being more risky. The sampled investors were willing to undertake financial sacrifice in order to invest according to their faith. The most important source of information regarding investments was cited as professional advice, followed by word of mouth and advice from family and friends. Advertising came in behind these factors and was not an influential source of information for the sampled investors. The factors most important to investors when deciding to invest in a fund was the philosophy of the fund (i.e. it’s investment strategy or ideology) followed by the risk profile of the fund and past returns of the fund. The content analysis showed that the factsheets of South African mutual funds were aligned to the factors identified by the sample of investors as most important with influencing their decision to invest. Moreover, conventional funds focused more on returns than risk, with ethical funds focusing more on risk than return – thus funds tended to emphasise their strong points most in their factsheets. / MB2016

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A study of Imāmī Islamic law, gender and soteriology; marriage and divorce as technologies of the self. / This dissertation explores marriage in Muslim Imāmī juristic law as an embodiment of a set of practices that are aimed at cultivating the pious and virtuous self. As a ritual practice for mainstream Imāmī jurists, marriage (and its corollary activities, e.g. sex) was a mode of pietistic self-fashioning and hence a technology of the self. When faced with the strong possibility or inevitability of marital breakdown, and the sexual sins that may have come about as a result of this breakdown, Imāmī jurists opted for creating a space for women’s prerogative to divorce in which the marriage could end whilst still upholding Islam as a program for the circumvention of sin and the production of īmān. Divorce, in this sense, can be thought of as a safety mechanism and extension of marriage’s program for the nurturing of a pietistic psychology in men and women. The textual and gendered discourse of juristic law was therefore aimed at creating a legal program for individuals so as to maintain the normative Muslim’s ontological bond with God through a series of regulations, disciplines, bodily practices and juristically permitted gendered power inversions that promoted soteriological success. This study argues that the primary concern of Imāmī jurists was not to maintain a gendered hierarchy as the current dominant scholarship holds, but to prevent sin, especially zinā, the corruption of the qalb (metaphysical heart) and ultimately avoid damnation in the Hereafter. For Imāmī jurists, marriage was not just a procedural practice of rights and duties, but a mode of self-development and a platform through which an eschatological battle against sexual sin and the Devil took place in. When patriarchy, or more specifically, asymmetrical power relations between (actual/potential) wives and husbands (or guardians) conflicted with the soteriological aims of juristic discourse, the former was inverted. The study concludes that maintaining gender hierarchy was not integral to the cosmology of juristic practice (even in its premodern discourse); it was maintaining the normative believer’s ontological bond with God and saving him/her, as well as the believing community, from damnation. Theological concerns for salvation - and the cultivation of the pious self that made salvation possible – is what animated Imāmī juristic discourse and not patriarchy whether it was obtained from the source-texts (Qur’an, ḥadīth) or social custom (ʿurf). This study undertakes this task by observing six key areas in the Imāmī tradition where notions of salvation and spiritual ontology in marriage/divorce figure the most prominently: juristic preliminaries on marriage and zinā, interfaith marriage, prepubescent marriage, temporary marriage with zānīyahs, nushūz and khulʿ divorce. / Thesis / Doctor of Philosophy (PhD)

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My dissertation examines the transformation of Islamic legal discourse and the impact of that discourse on Muslim society. More particularly, it analyzes fatwas (religious legal edicts) over the course of Muslim history so as to determine how this legal mechanism was instrumental in the making and remaking of Islamic law and society. Historically speaking, substantive aspects of Islamic law developed out of the material of fatwas. In the very early stages of Islamic history there were no codified laws to guide people in their religious and social concerns, but the manner in which Muslims received guidance with regards to their religious practice was that they posed their concerns to early proto-jurists in the form of religio-legal questions, which these jurists addressed in the form of fatwas. Out of the critical mass of these fatwas, Islamic legal manuals began to be compiled and a definitive corpus of Islamic law came into being. Essentially, my investigation looks at the development and continuing evolution of Islamic law through lens of a particular legal practice: issuance of fatwas. By examining fatwas in different periods of Islamic history from the beginning until today, I chart the transformations that take place in Islamic legal tradition(s) as a result of the encounter with changing socio-historical conditions. More particularly, my analysis draws attention to the way in which legal practices amongst jurists created discursive shifts to established norms within Islamic legal discourse on how these discursive shifts contributed to the evolution of Islamic law. Moreover, by analyzing fatwas issued from Muslim jurists from various regions and periods, I identify how fatwas were essential catalysts for historical change, which gives us a better appreciation of the interrelationship between law and society. This historical foundation provides a basis for a diachronic assessment of the transformations that take place in Islamic legal tradition as a result of the encounter with colonialism. In latter part of my investigation, I examine how the practice and rationalization of fatwa has changed due to the ramifications of colonialism on the Muslim world. In this era, the established practices and doctrines of Islamic law were critiqued through the lens of modern Western ideas. This spawned modern Muslim movements that sought to reform Islamic law and redefine its relationship to the state and society. After historically establishing the ideas which were advocated by reformers, my goal is to assess whether those calls for reform have actually affected the practice Islamic law at the substantive and procedural levels. I do this by subjecting fatwas issued in the postcolonial period to critical analysis, so as to determine whether the procedures or rationale of fatwas have changed in a fundamental way. The larger themes that I address in my latter analysis is whether this modern trend amongst some Muslim thinkers and jurists towards contextually oriented legal concepts represents a lasting shift away from the traditional textually oriented legal methodology to produce a new type of discourse that is revolutionizing Islamic law or is it a passing phenomenon that will not make a lasting impact on how Islamic law is derived in the future. Fatwas are the key starting points in addressing these question because they represent the most elemental dimensions of Islamic law and the new legal developments within it. So, they offer vistas on how Muslim religious and legal practice will undergo a transformation in the future. / Religion

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