Islamic law and social change : a legal perspective
Master Thesis
1989
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University of Cape Town
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Abstract
My 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.
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Includes bibliographies.
Reference:
Moosagie, M. 1989. Islamic law and social change : a legal perspective. University of Cape Town.