Luqman Zakariyah

Legal Maxims in Islamic Criminal Law: Theory and Applications

Using contemporary illustrations, Legal Maxims in Islamic Criminal Law delves into the theoretical and practical studies of al-Qawaid al-Fiqhiyyah in Islamic legal theory. It elucidates the importance of this concept in the application of Islamic law and demonstrates how the concept relates to the objectives of Islamic law ( maqāṣid al-Sharī‘ah ), generally.

Confession and Retraction: The Application of Islamic Legal Maxims in Safiyyatu and Amina's Cases in Northern Nigeria

The legal procedural system of the Islamic law has been constructively or destructively mounted with criticisms. One of the reasons for these criticisms is assumingly based on the lack of incorporating the objective of the Islamic Law through “intertexualizing” the textual evidences on one hand and failure to extrapolate all sources available for “dynamizing” the legal system of the Sharicah (Islamic law) on the other. The criticisms that trailed Amina Lawal and Safiyyatu Husainis cases in Nigeria are, in our opinion, based on the above phenomenon. “Islamic legal maxims” as a subject is one of the sciences which aphoristically subsume all the spectrums promoted by the Sharicah. In Islamic jurisprudence, there are many legal maxims, including legal maxims of confession and retraction, on which the tenets of Islamic law are based. This article focuses on how these legal maxims can be explored to ensure justice in Islamic criminal procedures, as it is established that confession is recommendable in crimes that involve rights of men as opposed to crimes that involve rights of God, in which confession is detestable. Some of the questions raised in this article are; is it possible for someone to confess to a criminal act and to retract later? When is retraction of confession allowed in Islamic judiciary procedure? What is the effect of retraction? And in what offences can retraction avert the punishment assigned to the offence?

Legal maxims and Islamic financial transactions: A case study of mortgage contracts and the dilemma for Muslims in Britain

Abstract This article aims to focus on legal maxims related to financial transactions to explore whether they offer any solutions for Muslims concerned with this dilemma, and to investigate how such legal maxims can be used to shape the way in which Muslims in the West perceive today’s mortgage issues. Some questions raised are the following. When entering a mortgage contract, does a Muslim’s intention change the ruling of the transaction under the pretext of the two maxims al-ʿumūr bi maqāṣidihā (“matters considered according to intention”) and hal al-ʿibrah fī l-ʿuqūd bi l-maqāṣid wa l-maʿanī aw bi l-alfāẓ wa l-mabānī (“in contracts, is effect given to intention and the meaning or expression and form”)? Can one be certain that mortgages are completely ḥarām (unlawful) when considering the maxim al-yaqīn lā yazūl bi l-shakk (“certainty cannot be repelled by doubt”)? What aspects of ḥarām are found in mortgages and can they be marginalized by the maxim al-ḍarūrāt tubīh al-maḥẓūrāt (“necessity makes the unlawful thing lawful”)? If Islam allows bayʿ al-istiṣnāʿ (contract for manufacture) on the basis of ʿurf (custom), can mortgages also be permitted under the maxim al-ʿādah muḥakkamah (“custom is authoritative”)?

Custom and society in Islamic criminal law: a critical appraisal of the Maxim ‘al-ʿĀdah Muḥakkamah’ (Custom is authoritative) and its sisters in Islamic legal procedures

Abstract Islamic legal maxims promote the spirit of Islamic law through extrapolation of the texts. The legal maxim of al-ʿādah is one of the five basic legal maxims agreed upon among classical Muslim jurists. Despite the wide acceptability of custom in Islamic legal theory and its authoritativeness in application, one of the controversial issues surrounding the use of custom (al-ʿādah) is whether, by law, rulings can be changed over time when customs have changed. Thus, this article aims to examine the effect of custom in rulings related to ḥudūd and qiṣāṣ (fixed and retaliative punishments) in Islamic law and whether such rulings can be changed over time as custom changes and, if they can be changed, to what extent can such changes be made and to what effect do such changes affect the sanctity of the Qurʾān and Ḥadīth texts.

Consideration of Custom (ʿUrf) by the Izalah Organization in Gombe, Nigeria : A Critical Examination = مراعاة آلية (العرف) لدى جماعة الإزالة في ولاية غونبي، نيجيريا : دراسة نقدية

‘Urf in the Sharīʿah serves as an essential tool for dealing with mu‘ᾱmalāt aspects of Muslim life. The ‘urf rulings stipulated by the scholars determine its acceptability or otherwise. A certain ‘urf serves as a legal principle to conduct a transaction in social interaction. However, Jamᾱ’atu Izalatil bid’a wa Iqᾱmatis Sunnah (The Society for the Removal of Innovation and Establishment of the Sunnah) uses the term bid‘ah indiscriminately to include some customary practices in mu‘ᾱmalāt. This leads to a different perception of how people understand the word and its application, which gives a different dimension of interpretation on the Sharīʿah allowance of ‘urf usage. Thus, depicting ʿurf as bid‘ah complicates the ability to verify the crux of bid‘ah in matters pertaining to ‘ibᾱdah and mu‘āmalāt in their respective domains. The results of the qualitative research conducted in Gombe metropolis show the people’s understanding and utilization of the words to be synonymous. This is a result of the Izalah organization’s application of the two words (bidʿah and ʿurf) in dealing with mu‘āmalāt as well as ʿibᾱdah. Muslims misunderstood the utilization of these terms and therefore misapply some practical Sunnah in marriage celebrations, for example, as bidʿah. Therefore, there is need for the organization to educate Muslims on the validity of customary practices that do not contravene the teachings of Islam.

Islamic Legal Maxims for Attainment of Maqasid-al-Shari‘ah in Criminal Law: Reflections on the Implications for Muslim Women in the Tension Between Shari‘ah and Western Law

The legal procedural system of Islamic criminal law has been criticised, either constructively or destructively, over a period of time. Some of the most recent cases in the twenty-first century are the cases of Safiyyatu of Sokoto State and Amina of Kastina State of Nigeria respectively, who were convicted on adultery and later acquitted due to technical legal faults. One of the reasons for criticism of the two cases is based on the lack of incorporating the objective of Islamic Law through “intertextualizing” the textual evidence, on one hand, and on the other failure to extrapolate all sources available for “dynamizing” the Shari‘ah legal system. This chapter will address how these legal maxims can be explored to ensure that the purposes of Islamic criminal law are comprehended and that justice is established in Islamic legal procedure. In doing so, the two cases cited above will be used as empirical case studies. Some of the issues raised in the chapter are: Was criminal intention of the accused women considered? In other words, is it certain that the accused women intentionally committed the crime? Is there any shubha for giving them benefit of the doubt as required by law? Is it possible for someone to report a case of adultery to the authorities? Why were the two cases reported? Does retraction of a confession abate punishment of the accused? These questions will be answered through some relevant basic legal maxims of Islamic law which depict “maqasid al-Shari‘ah”.