Fundamental conceptions underlying areas of jurisprudence and how they shape related rulings: a comparative study with special reference to partnership

• Main Author: Sadique, Muhammad Abdurrahman
• Format: Conference or Workshop Item
• Language: English; English
• Published: 2012
• Subjects: HG1501 Banking; KBP425 Uṣūl al-fiqh. Jurisprudence and theory of law. Science of legal reasoning.; KBP639 Muʻāmalāt
• Online Access: http://irep.iium.edu.my/22747/2/Fundamental_conceptions_underlying_areas_of_jurisprudence_and_how_they_shape_related_rulings-M_Abdurrahman_Sadique.pdf; http://irep.iium.edu.my/22747/6/Support_docs_Iran_Fiqh_Law_Conf_M_A_Sadique.pdf; http://irep.iium.edu.my/22747/

In studying Islamic law, it becomes evident that in many areas, the relevant rulings are linked together by a fundamental conception that acts as the foundation for all the related rulings. These fundamental conceptions dictate the structural framework of the relevant area, providing shape to the rulings governing diverse issues. These underlying theories are often not referred to explicitly in the works of Islamic law, which generally suffice with explaining the relevant rules. It is noted that different schools of Islamic law had sometimes formed individual conceptions, based on which their approach to, and rulings on, detailed issues have varied. However, when a school is taken individually, its rulings on a particular area of law are always found to be coherent and uniform, without giving rise to contradiction. In order to highlight the existence of fundamental conceptions that give shape to detailed rulings, the paper takes the contract of commercial partnership (shirkah al ‘aqd) as an example. Each school of Islamic law has adopted a distinct conception regarding the essential nature of partnership, on which all the detailed rules related to different areas of partnership are based. In modern developments taking place in Islamic law, these fundamental theories have not received the attention they deserve. This may result in newly developed rulings contradicting the basic theory, thus losing their relation to the general body of law. As such, it is vital that the new rules developed be assessed for conformity with the fundamental conceptions of shari‘ah on the subject, so as to preserve the uniformity and coherence of shari‘ah regulations. It is recommended that in practical efforts to apply Islamic law through legislation, such overall theories be taken in to consideration. Concurrent research into overall theories of shari‘ah should be undertaken, in order to ensure that legislated rulings maintain their coherence.