On Johnson's Usul al-Fiqh

(1) The use of Maslahah as source of law among the Usulis in 4th century Hijrah was divided into several groups; the Ash'ari theologians, the Hanfis and Malik bin Anas. Ghazali seems to disagree to these groups by stating maslahah is the preservation of what is known as maqasid - p.246

(2) According to the prominent Shafi'i scholars, maslahah remains subordinate to qiyas and must be attached to the text, otherwise it becomes similar to istihsan or masalahah mursalah - p.247

(3) According to western expert in Islamic law, Ibn Taymiyyah did not explicitly advocate the reopening of ijtihad ... but as a consequence of a narrowly formulated idea of consensus - p.250

(4) Shatibi is responsible the turn from traditional text-based literalism to a focus on the meta-legal notion of Sharia aims - p.252

(5) Shafi'i fashioned legal tool of Masalih Mursalah with a consistent all embracing fundamental legal principle rejecting Ghazali anti-rational instinct subsumed under Qiyas - p.252 

Penghakiman Sah Walaupun Pelantikan Tidak Sah

YONG TSHU KHIN & ANOR V. DAHAN CIPTA SDN BHD & ANOR AND OTHER APPLICATIONS [2021] 1 CLJ 63

FEDERAL COURT, PUTRAJAYA30 NOVEMBER 2020
[2020] CLJ JT(15)

The validity of a decision of a court, a judge or a judicial arbiter cannot be collaterally challenged on the ground that the judge's appointment is invalid as, even if his appointment is deemed invalid, his decision is saved by the application of the de facto doctrine which exists to preserve the integrity of judicial decisions. Where therefore the validity of the decision of the apex court and its coram is being challenged on the ground of alleged invalidity or unconstitutionality of the appointment of the Chief Justice who empaneled the court, or for that matter too of the appointment of the President of the Court of Appeal, the argument that the panel is in the circumstances suffering from a coram failure cannot be sustained or assented to; even if the appointment of the CJ or the PCA, as the case may be, were set aside de jure, they were not usurpers in the real sense of the word, as there were some legal basis for their appointments, and therefore, the decisions that they made, whether judicial or administrative, are protected by the aforesaid doctrine, whose primary existence, it bears reemphasis, is to save the integrity of the judgments of the court.

Rejuvinasi Pentadbiran Perundangan Islam di Malaysia

 Rejuvinasi Pentadbiran Perundangan Islam di Malaysia  

Tajuk ini sebenarnya dihantar ke sebuah akhbar untuk penerbitan pada Oktober 2020 yang lalu. Namun dikeluarkan di sini bagi bacaan semua. 

 

Reasons Why Muslim Backwards

Reasons why Muslim backwards? Raphael Patai, a Polish originated scholar in Arabic language and culture, made some observation through his book entitled "The Arab Mind" published by Charles Scribner's Sons, New York in 1973 and later in 1983. The review of this book was published by American Anthropologist volume 76 in 1974 at pp.396-397. Probably some of the observations are outdated. Nonetheless the issues and impact that exist or felt currently must have the origins from some of these factors. It received a laudable but appraised review. More importantly the author had a first hand experience of the problem having lived in Palestine for 15 years, studying and teaching the subject particularly relating to Arabic language and culture. The reasons for Muslim's backwardness as perceived by the author can be summarized as follows:

(1) Arabic culture and language is a predilection for overstated rhetoric. In other words the language tends to emphasize on sounds and resonance more than its true meaning. For a Malay Muslim, the word kafir may be abusive and offensive, for Arab it is used to express condemnation at most of the time. Similarly the word qatl or kill. For further reading on this subject please go to this link.

(2) Inherent quality of Islamic religion which is fanaticism? This is probably has some relation to limitation on the use of rationale and intellect or ijtihad and openness to new idea. It is not necessarily Islamic, but rather tradition or history.

(3) Failure to develop human resources. This is quite clear and still a problem until our current time.

(4) Corruption and internal division of Muslim states. This is obvious, no need explanation. Nonetheless division sadly could be for superficial reason such as different of religious view or affiliation.

(5) Greater access to natural resources. This explains lack of innovation and expansion to the other territories to search resources in contrast to western colonial powers who mastered in sea fearing capability and later on modern technology. This link may give some idea of this reason.

(6) The growth of conservatism and isolationism. In the fifties and sixties during the cold war began the political and religious movement to challenge Muslim secular authority with religious slogan or motto. Current development shown that this challenge has somehow move towards moderation and inclusivity in many of modern Muslim states.

(7) Lack of the ability to exploit natural wealth due to lack of technology and science. This problem is arisen from from the factors related to human resource and intermingled with other factors such as corruption, conservatism and religious fanaticism that rejects modern innovation.