Research Articles

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Islamic Law, Money Creation and Bank Borrowing

This text is a small chapter from a book called “Ribā and Ribā Contracts,” written some time ago The purpose of the book was to show how many contracts are affected by the rules of the prohibition of ribā. The present chapter deals with the impact of the rules of ribā on the creation of money. At the end, a few questions are raised for the reader about the form of currency that will serve the purpose best. 1. Bay’ al-nasī’ah is called the credit sale…

Islamic Law and the General Features of the Islamic Economic System

My findings about the Islamic economic system after a prolonged study of Islamic law…

The Definition of Riba by Jurists: An Elaboration

Analysis of the definition of riba by the earlier jurists…

Why Taqlid is Wajib (Obligatory)

A detailed article on the topic of taqlīd was written in 1983: Imran Ahsan Nyazee, “The scope of taqlīd in islamic law,” Islamic Studies, vol. 22, No. 4 (Winter 1983), pp. 1-29 (29 pages). It is available online. In the present world of social media and the internet, with many lay persons expressing legal opinions directly on the basis of verses and traditions, questions about the meaning and necessity of taqlīd have increased. Further, it appears that a very brief explanation is required to answer the question why taqlīd is necessary, because detailed answers tend to confuse lay readers…

Why is Following a Single School Wajib (Obligatory)?

A detailed booklet, on the subject, called Following a Single School and Rules for Issuing Fatwas was published through Amazon on December 24, 2016. It had been available online for some time before this. The question, however, as to why it is mandatory to follow a single school is still asked repeatedly on different forums. We, therefore, feel compelled to provide a comprehensive, but very brief answer to this recurring question…

Abū Ḥanīfah and the Nine Fields of Islamic Law

This text is actually a chapter from a book called “Defending the Frontiers of the Ḥanafī School.” The purpose of writing the book was to show what the Hanafī school has contributed to the corpus of Islamic law. In doing so, it was the intention of the text to present the real meaning of those features that have received the maximum criticism from the other schools. This chapter first elaborates the true meaning of the term “jurist” in Islamic law. It shows that emphasis should be on what a jurist has contributed to the field of Islamic law, rather than on his other merits as a human being or even his piety, which of course are important in their own right. The fields of Islamic law that the Ḥanafī jurists have developed and refined are also listed and elaborated…

The Probable Islamic State of the Future

This article attempts to accommodate the idea of legal personality into the concept of the Islamic state. The claim made so far, in an earlier text, is that Islamic law is incompatible with the existing form of the modern state, and there is very little chance of the growth of this law in the environment provided by the modern state…

Corporate Personality in Uṣūl al-Fiqh

The chapter on “Corporate Personality and Uṣūl al-Fiqh,” presented here, is part of a study undertaken during a fellowship at the Islamic Legal Studies Program, Harvard Law School in 1996. The study was published as a book under the title Islamic Law of Business Organization: Corporations in 1998. The text analyzed the issue of recognition of legal personality from the perspective of uṣūl al-fiqh as well as fiqh. The discussion in uṣūl al-fiqh is now presented here. A major reason for presenting the discussion here is that many writers are still not clear about the position taken by Islamic law on the issue or that they do not appreciate the underlying reasons. By this we do not mean agreeing with the position taken here. What is required is agreeing or disagreeing with arguments…

Hanafi Manual of Zakat

This brief document tries to encapsulate the complex rules of zakāt, a pillar of Islam. It is based on the writings of my Imāms and teachers: Imām al-Sarakhsi, Imām al-Kāsānī and Imām al-Marghīnānī. I draw my strength from these great leaders and to them I am forever indebted…

Denying the Islamic Right of the Poor in Minerals in Pakistan

Most of the text in this document is taken from an earlier document called the “Sharī‘ah Bill of Rights.” The issue of minerals has taken a new turn in Pakistan with a renewed effort by the government to invite investors for the exploration, extraction and processing of minerals. The section pertaining to minerals has, therefore, been excerpted from the above document to highlight the neglected right of the poor in these minerals, a right granted to them by Allah Almighty…

A Tribute to Sir Archibald Galloway (1779–1850) A Scholar of Islamic Law and Chairman of the East India Company

Sir Archibald Galloway (1779–1850), probably the last Chairman of the East India Company, was an outstanding scholar of Islamic law. We would place him in the ranks of great scholars like Joseph Schacht and N.J. Coulson. It is, however, surprising that the West has kept him concealed from the academic world. The obvious reason that comes to our mind is that he was all praise for Islamic law, which he preferred over English common law. The last section on the merits of Islamic law must be read by all…

The Divine Covenant and Islamic Law

The text in this document is Chapter 1 of Imran Ahsan Khan Nyazee, The Original Meaning of Ḥanafī Uṣūl al-Fiqh (Islamabad: Federal Law House, 2021; first published 2020). The text shows how the entire structure of uṣūl al-fiqh as well as fiqh revolves around, or is based on, the ‘Ahd or the Divine Covenant. The basis for the liabilities of Muslims and Non-Muslims is explained at some length. The credit for this approach goes to Imāms al-Dabbūsī and al-Sarakhsī…

The Method of the Hanafī School for Accepting Traditions Versus the Method followed in the Sound Compilations

The text in this document is based on two sections from Chapter 2 of Imran Ahsan Khan Nyazee, Defending the Frontiers of the Ḥanafī School (Islamabad: Federal Law House, 2021). The text highlights the rules for accepting traditions followed by the Ḥanafī school…

Foundations of Article 62(1)(f) in Islamic Law (Being Sadiq and Ameen)

The article deals with the Islamic legal basis for disqualification for not being sadiq and ameen…

Corporate Personality in Fiqh (Islamic Law)

The chapter on “Corporate Personality and Fiqh,” presented here, is part of a study undertaken during a fellowship at the Islamic Legal Studies Program, Harvard Law School in 1996. The study was published as a book under the title Islamic Law of Business Organization: Corporations in 1998. The text analyzed the issue of recognition of legal personality from the perspective of uṣūl al-fiqh as well as fiqh. The discussion in fiqh is now presented here. A major reason for presenting the discussion here is that many writers are still not clear about the position taken by Islamic law on the issue or that they do not appreciate the underlying reasons. By this we do not mean agreeing with the position taken here. What is required is agreeing or disagreeing with arguments…

Comparison between Islamic Law, Civil Law and Common Law

The text in this document is based on chapters 9 and 10 of Imran Ahsan Khan Nyazee, The Methodology of Ijtihād: Old and New (Comparative Jurisprudence) (Islamabad: Federal Law House, 2021). The comparison is obviously about the broad features and not the details…

US Supreme Court Overrules Mera Jism Meri Marzi

Highlights the link between us supreme court judgment on abortion and a slogan used by Aurat march in Pakistan…

The Restatement of Usul al-Fiqh: Introducing the New Methodology

The content of this paper is actually the first chapter of the most recent book on uṣūl al-fiqh written by this writer. The title of the book is: The Methodology of Ijtihād: Old and New (Comparative Jurisprudence). The book is, in fact, a complete restatement of the discipline of uṣūl al-fiqh with a focus on how the mind of the mujtahid works when he is undertaking ijtihād…

The Future of Islamic Law

The future of Islamic law in an environment dominated by nation states is difficult to visualize. This paper identifies the areas in which this law will grow. This future was was visible since the birth of Islamic law…

Legalizing Takaful (Islamic Insurance)

Takaful has been implemented through three major models. This paper argues that all three models are defective, because of which they are to be rejected. A new and simple model is proposed instead…

Why the Offence of Rape in Place of Zina Bi’L-Jabr

The paper discusses the reasons for substituting the offence of rape for the Islamic punishment of zina bi’l-jabr. The Islamic punishment was probably included through a liberal interpretation of the relevant texts or on the basis of analogy or on the basis of the protection of the interests of the offender. The paper discusses all these points…

True Islamic Banking — A New Proposal Based on ‘The Positive Money Proposal’

The Positive Money proposals and the 100% reserve debates, which have almost a century of discussions and research behind them, have now gathered considerable momentum. A cursory perusal of the proposals shows that the features contemplated, with some modifications, may offer a solution for true Islamic banking that is not only free of ribā, but one that promotes the objectives of the Sharī‘ah. Further, the final design, after incorporation of the sharī‘ah rules, will satisfy the ribā provisions laid down by the earlier jurists…

The Definition of Riba or the Failure of Modern Scholars to Understand the True Meaning of Riba

Modern Muslim scholars prohibit riba or interest, but they prohibit it on the basis of wrong reasoning or interpretation of the texts. Their faulty reasoning has led to confusion and difficulties in the implementation of Islamic banking and finance. This paper points our that these scholars cannot even give convincing reasons for why simple interest charged by the banks is prohibited by Islamic law and the texts. It is first shown why their reasoning is inadequate, and then the correct reasoning provided by the earlier Muslim jurists is elaborated. The paper ends with a comprehensive definition of riba that is based on the texts as elaborated by the earlier jurists…

The New Political System of Pakistan

The parliamentary system, embedded in the British model, has collapsed in this country. The British people waged a prolonged struggle for their rights and brought their parliament to a position of supremacy. For the people in Pakistan it is an alien system. The people do not understand it nor are they concerned with the conventions and traditions imported from Britain, as these too are alien. The parliamentarians themselves do not understand this system.

The glaring evidence of this ignorance is that our senior parliamentarians continue to claim that “parliament is supreme,” least realising that where there is a written constitution there is a hierarchy of texts, and it is the constitution that is supreme. They also do not understand that Britain has no constitution. In addition to this, our parliamentarians have lost their authority, both moral and legal, to govern this country and to make laws for it. If this system is continued in the present form, it will threaten the well being of the citizens and the very existence of the nation. A new social contract is needed; a social contract that is closer to the soul of this nation…

It is the Shari`Ah of the Courts, Your Honour

A question is being raised today in many quarters as to which shari`ah, or whose shari`ah, is to be implemented in Pakistan. There are so many sects, it is claimed, and now some people have picked up guns for the implementation of the shari`ah, but whose version of the shari`ah is to be implemented? After all, there are so many different interpretations. The simple answer to all these questions is that the Constitution and the law of the land require that it be the shari`ah of the Courts. A very short explanation is provided in the following paragraphs…

Is Our Constitution Islamic, Your Honour?

The federal government has obtained a fatwa (religious decree) from a learned mufti (Express Tribune, February 9) that the Constitution is completely Islamic, because it contains 22 “Islamic” clauses that were originally proposed unanimously by the ulama of the country. A few days ago, it was suggested in an article in this Newspaper (It is the Shariah of the Courts, Your Honour) that merely writing down laws is not enough to make these laws Islamic; it is the interpretation of the law, by the Courts, as Islamic that will make the laws Islamic. It is now suggested that the existence of 22 Islamic clauses in the Constitution does not make it Islamic; the Constitution will become Islamic when each and every Article, and not only the 22 clauses mentioned, is interpreted by the courts as Islamic…

The CII Ruling Rejecting Permission of Existing Wife is Wrong

The Council of Islamic Ideology (CII) has issued a ruling (The News International and Express Tribune, of 11.3.2014) to the effect that a restriction placed on the unfettered Islamic right of a husband to take a second (or third or fourth) wife without seeking permission of the existing wife is wrong, and should be removed. The issue runs much deeper than a mere seeking of permission from the first wife. It involves the methodology of the CII in interpreting the texts of the Qur’an and the Sunnah…

Islamic Democratic and Political System

Many claims are made by jurists and scholars that Islam has its own form of democracy and political system; but when it comes to practical implementation there is very little to rely on. It is also claimed that Islam has its own system of distributive and social justice. In the light of such claims, what form will the Islamic democratic system have in the present times, and what political structures will be implemented? A ruling is required within the context of the current democratic and political system prevailing in Pakistan…

Agricultural Tax, ‘Ushr, Zakāt and Tax Returns

A question has been raised about zakāt, ‘ushr and other financial religious duties in the context of taxes imposed by governments, Federal or Provincial, especially the proposed enhancement or rationalization of the agricultural tax. The people are quite confused about how the whole system is going to work, and a solution is requested. In addition to this, the Federal Shari‘at Court has held that zakāt is like private charity; does this mean that the individual has a choice about payment or non-payment?…

Sharī‘Ah Bill of Rights for the New Millennium: A Bill of Rights Based Upon the Sharī‘ah for Securing the Rights of the Poor People of Pakistan in Particular, and Those of the Whole Ummah in General

The people of Pakistan are being offered cheap bread, income support programmes, and all kinds of subsidies as part of politics, as if they were beggars. There are also those who talk about some new revolution when the benefits of the revolution that was brought about fourteen centuries ago are being brushed aside. Surprisingly, the religious parties too are silent on this issue.The rights given to all poor Muslims by Allah Almighty are being denied to the poor of Pakistan when it is for these rights that they agreed to create a separate homeland. In these few pages, a claim is made for giving to the poor people of Pakistan what is rightfully theirs, something that has been given to them by Allah Almighty through the noble sharī‘ah: rights that no one can dare take away. This is a clarion call for establishing the Islamic system of distributive justice, which has been denied for too long now by those at the helm of affairs of this Ummah…

The Rules for Abortion and Causing Miscarriage: Isqāt-i-Haml and Isqāt-i-Janin in the Pakistan Penal Code

The Pakistan Penal Code deals with the issue of causing miscarriage/abortion in §§338, 338A, 338B, and 338C. The two offences dealt with are isqāṭ ḥaml and isqāṭ janīn. The distinction between the two offences is based on whether or not the organs of the baby in the womb are formed. The sections do not specify when the organs are formed. The offences, as defined, apparently follow the texts of the jurists of the Ḥanafī school. The sections also provide for punishment in the form of imprisonment, which is something that the texts of the jurists do not talk about. Further, the jurists do not, for obvious reasons, distinguish between intentional and unintentional causing of miscarriage in the situation under consideration. The PPC follows suit with what may not be the right thing to do, that is, the imposition of strict liability. In addition to this, neither the texts of the jurists nor the sections of the PPC mention the time at which life (apparently rūḥ) is breathed into the child in the womb. This, however, is an issue that is vigorously debated, on the basis of verses of the Qur’ān and traditions, by those writing on the issue of abortion. In this fatwā, we will treat the texts of the jurists as the facts of the case. A translation of al-Kāsānī’s organized text will be provided followed by the views of other jurists. After this, the issues to be discussed will be framed. An analysis of the rules and presumptions will then follow. Finally, a ruling will be provided…

Prayer Timings in Polar Regions

Question asked of Islamic scholars today are by persons who are well educated; some are scholars in their own right. They deserve adequate and well reasoned responses. A note on the methodology of fatwās. One-line fatwās issued by the learned Muftīs are, therefore, no longer acceptable. This fatwā is issued according to the principles of the Ḥanafī school. The method followed for responding was laid down by Imām Abu al-Ḥusayn al-Karkhī. He says: “When a person asks a question it is necessary for the responding jurist not to answer in absolute and general terms. He should examine the question to see whether it is a single category or may be divided into two or more. He should then examine each category word for word and give a suitable answer to the question. This principle is of immense benefit. The reason is that a reply in absolute terms can readily be ripped apart, because words are seldom employed in general terms.” He further adds: “The reply to a question is to be construed in accordance with what is generally known by each nation in their place of abode.” Some learned jurists have also stated that if there is a conflict in the texts of the jurists, the work to be treated as a final authority is al-Mabsūṭ of Shams al-A’immah al-Sarakhsī. We consider this to be sound advice. It may also be added here that if the issue is new and is not to be found in the works of the jurists, the methodology of takhrīj is to be followed, which basically means reasoning from the already settled general principles to resolve the new issue. The identity of the person raising the question will not be revealed unless he or she makes a request that it be revealed and stated in the fatwā…

The Karaites: Influence of Islamic Law on Jewish Law

In this article, the major ideas in al-Qirkisani’s Kitab al-Anwar wa’l-Maraqib (The Book of Lights and Watchtowers) concerning the origins of the Karaite movement will first be highlighted. This will be followed by a description of the Karaite principles, as explained by al-Qirkisani and acknowledged by the later Karaites. The primary source relied upon for this purpose will obviously be al-Qirkisani’s book. A comparison of this book with books on usul al-fiqh written by Muslim jurists will also be undertaken to show the influence of Islamic law on Karaite thought…

Zakāt on Companies, Shares, Bonds and Deposits

A petition was filed in this court asserting that Allāh Almighty has fixed a share in the wealth of the rich for the poor by way of zakāt, but the rich who own companies and corporations are not paying zakāt. Further, the learned scholars (muftīs) have created some confusion about what is due through their discussions of zakāt on shares and whether a company, being a legal person, is liable to zakāt at all. It is obvious that most of the wealth today is held by these companies, and it is not proper, according to the sharī‘ah, to withhold or deny this right of the poor. A declaratory judgement is sought that spells out clearly what is the right of the poor and what the companies, corporations, partnerships and business owe by way of the sacred duty of zakāt…

Zakāt on Rental Income

A petition was filed in this court seeking a declaratory pronouncement about the rules of zakāt for real estate, houses and plazas that were meant for trade or rental income. In particular it was asserted that if two persons, each having a million dollars invest their money with one investing in gold and silver and the other in rental property, the person who has invested in gold and silver has to pay zakat, while the other has to pay not on the value of his property, but only on the rent received after it has been saved for a year (ḥawl). This amounts to some kind of discrimination when the aim of both is investment. A judgment is sought that explains the reasons for the different treatment meted out to the owner of real estate, along with an elaboration of the rules of zakāt for such a person…

Islamic Law is International Law

Islamic law is international law. It has been so from the day it was revealed. Its reach is global and unlimited applying equally to the the whole world and locally. Islamic law recognizes no state or the idea of a state; it is for this reason that no state was established during the period of the Prophet (pbuh). The Qur’an addresses all mankind, again and again, laying bare the causes of the decline and destruction of nations. The rules for the survival of mankind and the success of nations are also elaborated in detail. The concepts of dar ul-Islam and dar ul-harb represent the different world views within the Muslim Ummah. The principle stated by al-Dabbusi recognises this reality: “The world according to us (Hanafis) is divided into two dars, while according to al-Shafi’it is a single indivisible dar.” In other words, Imam al-Shafi’i applies Islamic law to the whole world without distinction, but the Hanafis make a distinction waiting for acceptance by the whole world…

Islamic Banking is Ḥarām

We will describe the rules of ribā first, followed by murābaḥah and then a few words about leasing. A young student of reasonable intelligence will be able to understand the rules described here, which makes one wonder why the great muftīs of our times fail to do so…

Islamic Law and the CRC (Convention on the Rights of the Child)

In this paper, we shall describe the importance of the Convention on the Rights of the Child (CRC), which is the primary document for the protection of children. Considerable criticism of the Convention has emerged in the United States. This criticism may be seen as the other side of the picture. Accordingly, we shall follow up the description of the CRC with the criticism levelled against the Convention under the heading “United States and Criticism of the CRC.” The discussion of the criticism will be followed by a description of the position taken by countries with Muslim majorities, especially their reliance on Islamic lawor its provisions, while appreciating and accepting the principles laid down in the Convention. For doing so we shall be relying ssentially on reports submitted by some of these countries, as is required under the Convention. This description is also intended to show that the follow up procedures have been designed in such a way that, after ratification, the monitoring Committee formed under the Convention continues to question the actions taken by Muslim or other States. We shall go into a little more detail about the position of Pakistan to elaborate this. The Convention is detailed and complex and each of its provisions cannot be analysed here in terms of Islamic law, however, we shall identify some of the basic principles of this document to show that Islamic law can make a significant contribution in this area, and should be treated as a powerful tool for the implementation of these and other rights. Finally, the conclusion will summarise the recommendations we wish to make in the light of the findings in this paper…

Islamic Law and Human Rights

In this paper we will first discuss certain basic ideas related to human rights from the Islamic perspective, in particular the conflict and tension, if any, between revelation and reason. The discussion of the nature of human rights in Islam flows naturally from this and will be taken up next. The focus will be on traditional Islamic law followed by the position taken by international bodies like the Organisation of Islamic Conference (OIC). The two main approaches to human rights represented by Jeremy Bentham and John Locke will be discussed briefly and the Islamic position with respect to these two approaches will be stated. After this, we will turn to international law insofar as it promotes human rights through various declarations, treaties or conventions of the United Nations. To do so, we shall rely on the experience of the Muslim world with a single convention; namely, the Convention on the Rights of the Child (CRC). The impact of ratifying such documents on the legal systems that uphold the shar¯ı‘ah will be assessed in a general way. A distinction between the two systems of rights will be attempted for identifying the vital differences, especially those that affect interpretation. Finally, an attempt will be made to select the best approach to human rights that should be adopted by Muslim countries…

Zakat

Jurisprudence

Commercial Family Law

Family Law

History & Future of Islamic Law

Foundation of Human Rights in Islamic Law

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