Browsing by Author "Moosagie, Mohammed Allie"
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- ItemOpen AccessIslamic law and social change : a legal perspective(1989) Moosagie, Mohammed Allie; Tayob, AbdulkaderMy thesis attempts, in the first instance to ascertain whether Islamic legal theory (usul) has made provisions for the accommodation of changing social exigencies. If such provisions have been made, are they adequately employed to achieve optimum benefit? In the second instance, the Islamic judicial process of discovering and formulating the Divine law and the elements that contribute towards it is subjected to scrutiny to ascertain whether it is proceeding according to the general provisions made for it in terms of the principles of the law or, whether this crucial process has since been abandoned, corrupted, distorted or replaced. I have chosen four representative classical works of usul al-fiqh on which to base my assessment of usul vis-a-vis changing social exigency. One of the works is a Shafi i exposition; the second two are Hanafi expositions, and the fourth is a general exposition not located in a particular legal school (madhhab).After illustrating the inherent leeways to be found in the legal propositions together with the inherent scope accompanying the notions of maslahah (utility) and urf (prevailing norms), I proceed to evaluate the extent to which these leeways are employed in the actual judicial process of two of the world's most authoritative judicial institutions namely; al-Azhar (Cairo) and Darul Ulum (Deoband). To do this, I analyze the fatwa (judicial decree) on organ transplantation from both these institutions. My analysis is not aimed at the outcome of the fatwahs, but rather at the processes involved in arriving at the particular verdicts. In my conclusion I point to the ample provisions made by legal theory to contend with any social exigency and to the tragic neglect of their employment in the application of the law to novel situations. It is, therefore, the inconsistency between the provisions of legal theory and the absence of their application in the actual judicial process that has contributed to the current tension between law and social change.
- ItemOpen AccessTrends in the justificatory force of the Fatawa of the Deobandi mufti(1995) Moosagie, Mohammed Allie; Tayob, AbdulkaderThe collapse of Muslim rule in the Subcontinent of India during the nineteenth century generated a new role for the ulama'. The study traces how the ulama' profited from the decline in the central authority, to the extent that they emerged from a position of relative obscurity to the de facto leaders of a vanquished nation. They mobilized on the basis of the "Wali Allah" tradition and pursued two options. The political option was oriented towards the re-establishment of Muslim rule through jihad. The intellectual option was directed at the masses in an attempt to revive their religious consciousness and create a greater awareness for the Shariah. After the Mutiny of 1857 a group of ulama' in Deoband, in pursuit of the second option, launched an Islamic seminary named, Dar al-Ulum which gained rapid acceptance throughout the Northern Provinces of India. The Deobandi ulama' emerged as a very powerful religious force within the Subcontinent of India. How did they exert their power, authority and influence over the general masses? The basic thesis of this study is that their authority and influence over the masses was galvanized through the institution of ifta'.The ultimate objective of the study is to scrutinize the development, and the contribution of the Deobandis, through the process of ifta'. Through the scrutiny of a number of fatawa dealing with modern exigency, I identify certain definite justificatory trends within the fatawa. By focusing on the dual role of the Deobandi as mufti and sufi shaykh I develop the concept of a "vision of law" and believe that the justification of most of the fatawa dealing with modern social exigency is rooted more in the mufti's vision of law than in strictly legal arguments. I believe that the dual role of the mufti generates a Shari Tariqi mentality (vision) which is characterized by formalism, generated by the doctrine of taqlid.