Recent Developments in the Application of the Rule of Obligation and Their Study Through Practical Cases (Published)
This research examines the functions of The Rule of Ilzam, the Principle of Binding Obligation, in Islamic Jurisprudence today, within the variable and complex different legal systems now operating. The emphasis here is upon the ways in which this fundamental principle may enable resolution of the key issues now so very much in dispute within all three of the major areas of law dealing with personal status, contracts and transactions, namely in order to arrive at and to implement a just and even in the teeth of very considerable challenge to achieve a stable solution(s). Above all, a principal focus of this work is upon an examination of those significant limitations upon The Rule of Ilzam today – as regards both implementation in practice within individual countries’ legal systems and, even, where The Rule has been fully codified, the scope of its effective operation within such systems – with particular, though by no means exclusive, reference to key considerations of legislative as well as constitutional nature, and notably in respect of issues of equal rights and freedom of belief. This study will also look into the codification of Islamic Jurisprudence and the way the Rule of Ilzam has been implemented by various jurisdictions. Some examples of jurisdictions that are discussed in detail are Iraq, Lebanon and Sudan. The study will identify some of the challenges faced by various jurisdictions in dealing with issues of sectarianism, such as conflict of laws, jurisdiction and lack of provisions in legislation. It will also examine the implications of designating an official School of Jurisprudence and the way the Rule of Ilzam could be used to tackle sectarian discrimination whilst at the same time ensuring the protection of individual rights and the rights of minorities in accordance with the higher objectives of the Shariah (Maqasid al-Shariah).Examples of the judicial application of the Rule of Ilzam in terms of current cases in Iraq, Lebanon, Central Asia and the Indian subcontinent, including inter-sectarian marriage, divorce and khulʿ, have been presented and analysed in detail. Analysis is also made of its application to civil contracts and banking guarantees. Opinions of Islamic jurisprudential bodies and of relevant institutions and individuals from around the world have also been discussed in detail.Rule of Ilzam has thus developed beyond the confines of a legal maxim and is now a practical tool in the hands of judges, politicians and legislation, trying to facilitate contact between members of different Islamic schools in a modern society. Above all, the author is of the opinion that adequate legal frameworks are required which are suitable to the various patterns of jurisprudential thought, yet at the same time contain adequate safeguards for the ends of the Sharia, and thus lead to justice, equality and legal certitude.
Keywords: Modern Developments, Practical Cases, Rule of Ilzam, Transformations