WHITHER ISLAMIC LEGAL REASONING? The Law and Judicial Reasoning of The Religious Courts
Abstract
The article analyses the judicial reasoning employed by the religious courts in giving decisions on inheritance, particularly since the promulgation of the 1991 Compilation of Islamic Law. It seeks to examine whether these courts use Islamic legal reasoning. This paper argues that the structure of the courts’ decisions is to be found in most Civil Law courts. It then offers three different approaches of reasoning employed by the religious courts in their decisions on inheritance: the use of the legislations particularly the Compilation as the sole source of deductive reasoning, the combination of the legislations and the Islamic sources which share the same implication, and the application of Islamic legal reasoning with the emphasis on the objectives of Islamic law (maqāsid al-sharī‘a) which does not contradict the legislations. Although Islamic legal reasoning is employed, in most cases the decisions are simple and straightforward.
Moraref