Browsing by Author "Abdul Bari Awang, Ph.D"

This juristic study has analyzed the Islamic legal texts regarding the means to find out the most important Shari’a rulings related to the investment of endowments through lease-based instruments, and the most legitimate ways to invest in the Islamic Waqf (endowment) property. The study adopted deductive and inductive methodology. This research also aims to provide a wide-ranging study of key Shariah issues associated with types of sukuk. The study examines the different opinions of the four famous juristic schools of the Islamic religious law on interpretations about Islamic endowment and its development through different types of appropriate investment instruments. It addresses the nature of Islamic endowment contemporary juristic opinions regarding endowment development and its suitable investment. The study concluded that the Waqf jurisprudence is based on the realization of interests. It also set out a number of jurisprudential controls and economic criteria for the development of endowments, as well as addressing some of the appropriate contemporary means to create new horizons capable of meeting the needs of contemporary societies. The study also listed many of the appropriate contemporary legal methods for and development of endowments like Ijara Sukuk. The study ended with the presentation of some contemporary scenarios of lease-based instruments according to the rules regulated by the provisions of the Islamic Shari’a law.

This research addresses a set of common norms in the Kurdish families in the Iraqi Kurdistan region, specifically in the city of Erbir, the capital of the region. The purpose is to show the extent of their compatibility with Maqasid Al-Shariah (objectives of Shariah) and family conservation objectives. It also endeavours to evaluate the deviant norms and correct them in light of Maqasid Al-Shariah. Like any other Muslim family, the Kurdish family is governed by a set of norms which have become an axiom regardless of their compatibility with the rulings and Maqasid al-Shariah. To the best of the researcher’s knowledge, previous research has not triggered or conducted a study about this issue, and this is the gap this research aims to investigate. This research contributes to the body of literature by providing solutions based on Al-Shariah laws to reform what is wrong and address inaccuracies, in addition to preserving values and traditions that are compatible with Al-Shariah laws and its general objectives. The research addressed the reality of the contemporary Kurdish family and the most common norms among the family, whether it’s between spouses or between parents and their children. Moreover, it also addressed the norms related to current communication technologies. The research further revealed some common customs and norms known in the community regarding marriage, divorce and social relationships in light of the Al-Sharia purposes. The researcher used the inductive method to track the contents of the subject and observe the common norms, while adopting the analytical approach to evaluate these norms and the extent of its compatibility with Al-Sharia objectives. The researcher also conducted personal interviews aimed to drawing a general picture out of the real-time norms in the Kurdish families. Additionally, the researcher used the analytical method to demonstrate Al-Sharia law aspect of the family norms, and its Al-Sharia purposes in bringing benefit, ward off evil, and offer ways to reform them. The findings of this research revealed that most of the norms violate Al-Sharia laws and create negativity in the family, maintain problems between spouses regarding marital rights and means, spread incorrect views about women and divorce, and interfere in marriages. The researcher concluded with several important points: the necessity for family sessions, constructive efforts to educate the community and correct their misconceptions and their deviant norms. It is also imperative to establish special centers related to communication technology and enroll in training courses for those who wish to marry.

This research, acknowledging that Maṣlaḥah has an important role in solving problems concerning events (Nawazil) and new cases (Mustajaddat), aims at studying Maṣlaḥah and its application in personal status issues (Al-Aḥwal al-Shakhṣiyyah) among liberals in Indonesia. But liberals have applied them inaccurately, turning improbable rulings into probable ones as well as turning constant into changing variables without regulators (Ḍawabiṭ). Examples of such inaccuracies can be seen in how Indonesian liberals allow for a Muslimah to marry an infidel man, same sex marriage, and encourage for absolute equality between men and women in rights and obligation. All of the abovementioned rulings, the liberals argue, are based on Maṣlaḥah. Indonesian liberals are staunch proponent of the three principles of Islamic jurisprudence, namely “substance over form”, “the texts can be abrogated by Maṣlaḥah“, and “the texts can be revised by the intellect of society”. These three rules apply in the Counter Legal Draft-Kompilasi Hukum Islam (CLD-KHI). In order to clarify these problems, the researcher relied on the inductive approach to gather information related to the subject. The study employs critical and analytical approach in analyzing the views adopted by Indonesian liberals and discusses their opinions in the light of the recognized principles of Islamic jurisprudence and Islamic legal maxims prescribed in Islamic law. The researcher has reached several results, including; liberals avoided the methods of the Uṣūliyīn in devising terms by disassembling them. They have three principles of Islamic jurisprudence that have no controls and limits in their uses and applications. In their applications, they lose the texts in the name of Maqasid that follows their passions not Al-Maqasid al- Shar’iyyah, and they abolish and nullify the texts in the name of Maslahah if both of them are contradicting. Liberals even revise texts based solely on human intellect and conveniently disregard established traditions and historical records and evidences.

This research aims to clarify the jurisprudential provisions concerning the governance for expenditure of Zakat workers 'Al-A'amilina Alayha' in the Kuwait legal system. Another focus of this research is to shed light and consider the authorities that are empowered to levy and collect zakat, charitable associations and other charitable and voluntary teams, because these entities are working in the field of collecting zakat. By doing so, the researcher will be able to indicate an Islamic jurisprudence perspective on the conditions and controls established by Kuwaiti law provisions regarding the entities that are empowered to collect zakat, charity and their governance, with the need to identify this governance procedure governance for the expenditure of Zakat and its employees whom are legally permitted entities. Thus, it looks at whether this governance of zakat workers apply legislative articles with their responsibilities at certain times; or can the Kuwaiti legislators consider amending these articles and adding them to fill the gap in how these legislative articles are applied more flexibly. The researcher followed a set of scientific methodologies to address the subject, namely the inductive, analytical and comparative approach. Through the inductive approach, the researcher described extrapolating and tracking all the related sources written on the topic. Thus, the researcher applied various sources of Sharia books, scientific research, related articles and other studies. This extrapolation is derived from the knowledge of all aspects of all previous studies and in order to build a comprehensive idea of the research topic under study, including the analytical approach to collect and analyse topics that are related to governance of expenditure among zakat employees, hence the researcher eventually arrived at the desired results. The comparative approach was relied upon to compare the jurisprudential provisions on the subject and compare them with the legal articles in the Kuwaiti legislation of governance for the expenditure of zakat employees. The researcher also concluded with a set of results and recommendations.

The research aims to study the Division of Matrimonial Property between Spouses in Federal Land Development Authority (FELDA). This research examines its position from the point of Islamic Jurisprudence and discusses the views of some contemporary scholars pertaining to the division of property between spouses. This research also focuses on the claim of property, legal materials and fatwa, the division of matrimonial property’s criteria and its procedure in Sharia courts. The study involves a detailed discussion on the administration of “Harta Sepencarian” during marriage under (FELDA) and Islamic Family Law of Malaysia. In order to verify if its application contradicts with Sharia or not, this research also presents some examples of cases which relate to the division of matrimonial property to see the extent of Sharia-compliance in its applications. The study adopts a qualitative method by using library research and analytical method as well as this research conducted personal interviews to gain related information pertaining to the matrimonial property in FELDA. The study finds several conclusions, which are “Harta Sepencarian” in Felda can be consider as a custom (norm) and does not contradict with Sharia. The cases related to claiming money gained between spouses after divorce, death or polygamy. Under these circumstances, the division of acquired property between the spouses is based on 50% share, and the ex-wife has the right to include her name as landowner and the land law of Group Settlement Area Act (GSA) does not affect the rights of a widowed widow to obtain that property. The researcher has put forward several recommendations to contribute in the development of better control mechanism for this matrimonial property in FELDA which are to incorporate the Islamic Family Law In Malaysia and to the concept of Council Sulh to accelerate the process of claiming the money gained between spouses in Sharia courts.

This research aims to study the conditional divorce in Islamic jurisprudence and the practice of conditional divorce in the Islamic Family Law (Terengganu). The researcher also dealt with some models of conditional divorce cases, carried out in the Shariah court in the state of Terengganu, and the statement of judicial procedures for this practice. This research revealed some questions on this subject, namely: to which extent the conditions mentioned in the pronouncement of conditional divorce in the formal Islamic Family Law (Terengganu) is consent to the Islamic law, and how to apply this practice to this law. The researcher has adopted the inductive approach by tracking the statements made by jurists from original sources and books of jurisprudence, assets, and scientific research. As well as the analytical approach to discuss the statements of jurists on the subject of conditional divorce in Islamic jurisprudence and the analysis of the official conditional divorce pronouncement in the Islamic Family Law (Terengganu). The researcher conducted the field study by interviewing two staff members of the Shariah Court of the State of Terengganu. One of the most important conclusions reached by the researcher is that the conditions mentioned in the pronouncement of the official conditional divorce in the Islamic Family Law (Terengganu) did not contradict the conditions of validity of the conditional divorce in Islamic jurisprudence. The researcher believes that applying this practice is one of the best ways to preserve the wife's rights and keep her away from harm and injustice. He also suggests the unification of the conditional divorce as one pronouncement in all Malaysian states.