Journal of Law & Sociocultural Studies

Is Codification a Solution or Problem in Regulating the Personal Affairs of Muslims Under Islamic Law?

ABDULLAH RIZQ AL MUZAINI — Fri, 30 Dec 2022 00:00:00 +0000

The codification of religious law, at times, poses multiple challenges to the fuller achievement of its objectives. Islamic law is no exception to this rule. It is pertinent to note that Islamic law witnessed the so-called codification many centuries after its birth i.e., in the Ottoman era wherein a code of laws comprising the rules of Hanafi fiqh was compiled for its uniform enforcement. Later, the Indian sultans like Muhammad Tughlaqand Aurangzeb compiled Fiqh Feroz Shahi and Fatawa Aalamgiri respectively for the same purpose. The codification of Islamic law experienced yet another attitude when the non-Muslim British colonialists made the ‘Acts’ to regulate the personal affairs of their Muslim subjects. Moreover, such type of legislation continued in the post-independence era in India and Pakistan. This paper aims to provide a critical analysis of the history of the legislation of Islamic law in the subcontinent to frame the conclusion as to whether such legislation has helped enforcement of Shari‘ah or spoiled the spirit of this.

Doctrine of Commercial Impracticability with Resemblance to the Frustration of Purpose of Private International Contracts: An Analytical Study

SAIFULLAH HASSAN — Fri, 30 Dec 2022 00:00:00 +0000

In this modern era of business transactions, the parties are in a state of discernment while deciding the contractual obligations. The doctrine of commercial impracticability has proved benevolent for International business transactions, like sword or shield. The parties entering into the business transactions have certain purposes. If the purposes are destroyed due to the supervening circumstances, they may avoid contractual obligations as the contract becomes commercially impracticable for them. Sometimes, the doctrine of commercial impracticability is considered closer to the English concept of frustration of the purpose of contracts. Article 2-615 of the Uniform Commercial Code (USA) provides the basic concept of commercial impracticability; although several interpretations of courts are available, in different ways and on different aspects; that may cause the capacity of parties regarding the presumption of the true construction of the private, International contract. Now, there is an immense need to further elaborate and categorize the concept of the doctrine of commercial impracticability and doctrine of frustration of international contracts, both in legal and practical aspects, in emerging economic states, especially in Pakistan. This research article scrutinizes the optimistic approach followed by the superior courts of Pakistan by applying the provisions of Contract Act 1872 to interpret the provisions relating to frustration. This article also identifies the suitable standards of the doctrine of the excuse of performance of contracts in Pakistan and marks its application in Pakistan, as to whether the courts are following the strict standards or even recognizing these doctrines for the parties to get shelter as an excuse to perform their contractual obligations or not.

Rebuttal to the Objections against Implementation of Hudood Punishments

MUHAMMAD EHSAN ELAHI — Fri, 30 Dec 2022 00:00:00 +0000

The purpose of this study is to discuss several objections raised to Hudood punishments and implementation. Hudood means to limit or to abstain from, but technically it means a fixed punishment on specified acts determined by the Lawgiver. No one has any authority to alter, change, increase or decrease or pardon any of these sentences. These punishments are undoubtedly severe. If one keenly observes the whole structure of the Islamic criminal justice system, one finds that there are only five to seven offences, which can be labelled as Hudood offences. Only those offences are included in them which can ruin the whole society, adversely affect the public, and shack the moral foundations of society. The Islamic criminal justice system is based on the deterrence theory of punishment. The purpose of the Lawgiver is that if someone is convicted and finally executed, the other members of society will learn a lesson and ultimately abstain from committing the same offence. Consequently, peace and prosperity will prevail in society. In the matters of Hudood, the courts take great care and a Hudood punishment is rarely given.

Quantification of Damages in Tort cases in Pakistan

NASEER AHMAD, HAFIZ MUHAMMAD USMAN NAWAZ — Fri, 30 Dec 2022 00:00:00 +0000

The Damages can be demarcated as a disadvantage endures by a person in resulting the act or default of the other.[i] It is an award of money to injured party by the defaulter as compensation in case of loss or injury caused on act of tort or breach of contract. Damages can be defined as the right to claim compensation for loss suffered. Penalty in shape of money awarded to the party whose right violated is damages. Punishment is not considered as damages. A tort is an unjust act other than breaching of contract that harms others and consequently imposes civil liability by law. Tort in common law and most of the other legal systems that result from it are defined as any example of a malicious act, such as a physical assault on a person, encroachment on someone’s property, or the use and exploitation of one’s own land, economic interests, honor, reputation, and privacy. Initially, the tort involved only serious mistakes, bodily harm, damage to property, and instability on the ground. It is about individuals and the injured party can take action by initiating civil action. Remedy is compensation and tort is a private wrong.

Methodological Approach of Fiqh Academies towards Contemporary Islamic Financial Issues

MS. GHAZALA GHALIB KHAN — Fri, 30 Dec 2022 00:00:00 +0000

Present study argues that contemporary fiqh academies have adopted an ease-based moderate approach to resolve the current financial issues within the framework of Sharī‘ah. They played a vital role in development of Islamic Finance (IF) through an intricate expansion of Islamic legal principles pertaining to commercial laws. These academies operate as hubs of ijtihād institution. Their mode of ijtihād is collective or group ijtihād, in order to resolve contemporary fiqhi issues, and a considerable part of their resolutions consists of modern financial transactions. For the sake of resolving novel issues, Islamic legal interpretations of all the four schools of ahl-al-Sunnah, are deemed as common legal heritage, hence freely consulted without any bias to formulate new legal rules. However, many of the contemporary Muslim scholars criticized their methodological approach, mainly because they judge it as gross misapplication of the theories and principles of Islamic Law, thus leading to an abuse of legal diversity in fiqh discourse. The present research has undertaken an appraisal of methodology of some eminent pioneering fiqh academies of the world towards the development of IF industry through their fatāwa. The study concludes that these academies.