Papers by Hayatullah Himat Niazi
Modern discourse on adjudication has been made against the backdrop of the two dominant Western m... more Modern discourse on adjudication has been made against the backdrop of the two dominant Western models of inquisitorial trial of the Civil Law and adversarial trial of Common Law. The fundamental feature of inquisitorial system is that it is that the judge who has the overarching role in adjudicating whilst the unique feature of adversarial system is that it is partisan-centric. As to which of the models Islamic mode of adjudication fits, opinion varies. Some comparative scholars assimilate it with adversarial model whilst others see it identical to inquisitorial model or having the features of both. Using qualitative method by undertaking a critical library reseach of some crucial works, this paper, however, argues that the Shariah mode of criminal trial though resembling some features of both, has certain unique features of its own. This is on account of its religiously colored conception of crime, notion of judicial function, methods and standard of proof and the role of attorney...
International Journal of Islamic Thought, 2015
Islam presents a comprehensive system of life based on divine guidance. Its dynamism is due its g... more Islam presents a comprehensive system of life based on divine guidance. Its dynamism is due its general principles through which solutions for any conceivable situation could be sought. This is in line with the signification of the Quranic verse: "We have not neglected in the record a thing. . ." This necessitates the adoption of an adequate methodology for the derivation of rulings from revealed source. A strict literal approach in understanding of the revealed text would not facilitate solutions for new issues due to the limitation of the text. Thus, maslahah, as a method of interpretation of revealed guidance can play a crucial role in providing solutions for new issues of legal and civilizational nature. Therefore, this article attempts to examine the instrumental role of maslahah in revitalization of Islamic thought. It also highlights the necessity for reviving ijtihad through which stagnation from intellectual spheres of Muslim world could be removed. Maslahah in this context provides an effective instrument for the purpose, hence, can play significant role in restoring originality and dynamism to Islamic thought.
Scholars journal of economics, business and management, Dec 13, 2021
Review Article Conventional economics despite its scientific approach and positive arguments fail... more Review Article Conventional economics despite its scientific approach and positive arguments failed to solved the current economic problems of the humanity. There are two reasons for such failure; one reason is the positivity of its nature which hinders it from playing active role in controlling human behavior. And the second reason is that its basic postulates by themselves are the causes of the creation of the economic problems. This state of the affairs, necessitate, a complete departure from the contemporary conventional wisdom, in search of solution, to an alternative framework. An Islamic framework of economic analysis could present a viable alternative in the context, due to its dynamic nature, combining both material and spiritual aspects of human economic behaviors. Therefore, this article attempts to provide some insights into the early efforts by Muslim scholars in development the science of Islamic economics. It also underscores the inadequacy of the conventional economics theory and its causes, and the need for formulation of Islamic theory of economics. Philosophical framework of Islamic economics along with some major axioms of Islamic ethics, shaping Islamic outlook on economics are also dealt with. The distinctive features of an Islamic framework for economic analysis are also delineated in this article. Using an analytical approach, the article concludes the urgency of the need for the articulation of a comprehensive Islamic framework for Islamization of economic, hence, solving the contemporary economic problems of the humanity.
Lexis Nexis, 2020
Comparing Shariah with law is a common practice both in the Shariah and law schools. There are va... more Comparing Shariah with law is a common practice both in the Shariah and law schools. There are various levels of comparison from a simple curiosity to find the differences and similarities between Shariah and a positive legal system, whether Common Law or Civil Law, to a more advanced level of comparing legal postulates and concepts in the two systems in order to harmonise and reconcile the two. Depending on the purposes, methodology also differs: mere comparison between a statutory law and fiqh, conducting a thorough analysis of the two systems in terms of origins, sources and practical applications, and conceptual analysis beyond language similarities. In consequence, in terms of end-goal, there has been divergent approaches to the harmonization of Law with Shariah containing even skewed views. To remedy this, this article argues for methodological comparison between the two so as to overcome the problem of paradoxical approaches in comparative studies on topical issues like human rights
Modern discourse on adjudication has been made against the backdrop of the two dominant Western m... more Modern discourse on adjudication has been made against the backdrop of the two dominant Western models of inquisitorial trial of the French Civil law and adversarial trial of Anglo-American Common law. The fundamental feature of inquisitorial system is that it is that the judge who has the overarching role in adjudicating, while unique feature of adversarial system is that it is disputant-centric. As to which of the models Islamic mode of adjudication fits, opinion varies. Some comparative scholars assimilate it with adversarial model whilst others see it akin to inquisitorial model or having the features of both. This paper, however, argues that the Shariah mode of criminal trial though resembling some features of both, has certain unique features of its own- in view of its religiously colored conception of crime, notion of judicial function, methods and standard of proof and the role of attorney, which defies equation with such models.
Journal of Religious Studies (UOCHJRS), 2019
In Vitro Fertilization (IVF) has emerged as one of the most popular byproduct of Assistant Reprod... more In Vitro Fertilization (IVF) has emerged as one of the most popular byproduct of Assistant Reproductive Technology (ART) in our time. It has proven attractive to people across the globe for variety of reasons including infertility treatment and pre-natal sex selection. People of various cultures have reacted to its use in line with their own code of morality and religious values on human procreation, sexual purity and lineage exactitude. In the case of Muslims, its application for overcoming infertility has received general juridical approval with minimum number of caveats. A cursory of the existing fatwas, however reveals that the juristic deliberation on the implications of IVF in terms of destroying the excess embryos generated in the process is scanty. Accordingly, this study argues that if we equate legitimate use of IVF with natural way of human reproduction, then the ethicality of its casualties in terms of surplus embryo destruction should not be trivialized.
Advances in Natural and Applied Sciences, 2012
Human being is endowed with the instinct to desire and possess property.To regulate and control h... more Human being is endowed with the instinct to desire and possess property.To regulate and control human urge for property Islamic law identifies two basic ways of acquisition of property; acquisitionthrough one’s own efforts and acquisition throughinheritance. However, a person can dispose off his/her property in any way he likes, provided that it does not violate legal principles and his transaction is given effect during his life time. Hibah is one of the meritorious ways of disposal of property. Therefore, this paper attempts to present a analysis of the structural elements of hibah, its, legality and conditions. It also delineatesthe revocability or otherwise of hibahcontract.
Asian Social Science, 2013
The prosperity and success of a society heavily depends on the strength of the relation of its in... more The prosperity and success of a society heavily depends on the strength of the relation of its individual members, thus family constituting the fundamental unit of the structure of society provides the avenue for initiation of such relation among the individual members. Marriage as the only process through which families are brought into existence can play a very significant role in formulation of a good and cordial relation between individual at the micro level in the society hence, extending it to macro level. Therefore, this paper attempts to delineate on the significance of marriage in Islam, its purposes and role, in creation of cordial relation among the members of the society. This paper using an analytical method concludes that marriage leads to formation of cordial relation among family members hence result an integrated social relation network in the society.
Maqasid shari'ah or objectives of Islamic law constitute an extremely important element of determ... more Maqasid shari'ah or objectives of Islamic law constitute an extremely important element of determining law. Despite, its significance and importance, it is often ignored in the policymaking, in the process of legislation related to the public interest. Perhaps this is due to the lack of knowledge of the policy makers of the importance of objective of the law, or their tendency of not consulting the experts when formulating a policy. Therefore, this study attempts to highlight the importance as well as the implementation of principles of maqasid shari'ah in the country's administration. The study use library research method, hence the data collected from relevant literatures such as journals, books and other related materials are analyzed and conclusion are made. This study concludes that an effective and efficient administration of an Islamic state heavily depends on the application of dynamic principles provided by shari'ah. Some of these principles are qawa'id maqasidyyah, jalb al-masalih wa dar' al-mafasid and fiqh al-awlawiyyat.
International Journal of Islamic Thought, 2021
Philanthropic endowment or wqaf represents a form of long lasting charity with potential profits ... more Philanthropic endowment or wqaf represents a form of long lasting charity with potential profits or benefits meant for the spiritual and economical improvement of the society. This study attempts to revisit the concept of waqf by analysing its literal and technical meanings, its legitimacy in the light of the Qur'an and Sunnah. It also analysis some classical and contemporary views pertaining its conceptualization and traces its origin in the Islamic heritage. Istibdal, exchange of the waqf property, as a means of viability of waqf property and its relevant challenges are also dealt with. This paper is based on library research and use qualitative method. Having analysed, the relevant data the authors arrived at the conclusion that future efforts need to be made to develop the concept of waqf based on maqasid shari'ah while in tandem need to develop a universal and comprehensive vision of shari'ah based on its objectives. Both concepts must be revisited, reviewed, and revised to restore the dynamism of the concept of waqf hence, making it an effective tool for alleviation of the poverty and the distribution of wealth among the different sections of the society in equitable manner.
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Papers by Hayatullah Himat Niazi