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Fatwa historically and present

Fatwa Historically and present

Preparation: Meets all the conditions legitimacy. D. Ahmed Alkhmichla

(Director of the Dar al-Hadith Hassania Kingdom of Morocco)

Presentation:

اقتُرِح عليَّ موضوع «ظهورُ مصطلحي الفتوى والنوازل وتطورهما» الذي يركّز على الجانب التاريخي للفتوى، وهو ما لا تخفى أهميته باعتبار أنَّ مواصلة البناء لا يكون سليما إلا بعد المعرفة الكاملة للأسس التي يراد بها وصل البناء عليها، ولكن المشكل الجوهري الذي نعاني منه في تعاملنا مع التراث الأصولي والفقهي على الخصوص هو إنفاق كلّ الوقت والجهد في السرد التاريخي، وتغييب السؤال عن الأفكار والأحكام التي تجاوزها الزمن، وعما يجب القيام به لربط الفقه وأصوله بحياة الناس وواقعهم.

So I would like to split intrusive Paragraphs: First: More features of the emergence of fatwa and calamities and their development. The second: It is more important I have raised the problem of duplication between the fatwa and the law, and try to find a solution.

First paragraph: Fatwa linguistically and historically:

Ibn Faris says “Glossary of language standards”:” Ta na ailing character Aslan: One: Indicates the freshness of Jeddah and the other to articulate the rule”([1]).

In San Arab perspective:”The fatwas: Identify the problem of provisions, originally from the boy, a young event that broke out and strong, as if he strengthens confused his Vicb and become strong young… “.

In this sense linguistic received derivatives trunk (P t j) Four-sur Makiya: Youssef([2]) The ants([3]) The cave([4]) And Saffat([5]), While received these derivatives in two verses of civil Nisa ([6]) Who settled in the sense fundamentalist and idiosyncratic use, which by virtue of legitimate news “Not binding on the face”([7]).

The term fatwa: So were traded in the Muslim community since the start of the message and the revelation of the Qur'an. Therefore, it was the first practitioners of the Prophet's fatwa, has me some scholars collect his fatwas([8]), And widening patch of Islam and the spread of specialization in knowledge jurisprudence fatwas abounded, appeared to tens of jurists books summed up each and every one of them for personal fatwas, while others addressed to collect opinions circulating in their time, such as what he did Alonharisa([9]) The Wazzani([10]) Morocco.

Fatwa has led a major role in the life of the Muslim community throughout the ages. The spread of illiteracy, and the absence of representative institutions of the state often groundbreaking for the advisory opinion requested by the people in all their public and private affairs, worship and beliefs and transactions.

But from the other side of the fatwa is not related to the provisions contained in the definitive texts roses and significance. Not issue fatwas, for example, should be fasting month of Ramadan, or morning prayer and it Rkaatan, or the sanctity of marriage of those surveyed said Nisa; because such provisions which teaches religion necessarily must for every Muslim science.

But be in the provisions that came in the texts of the presumptive significance or roses, or did not want any text, and reach them by analogy, and it inference methods, such as: Plaudits and sent interests. Which means that the fatwa in content reflect the opinion of the Mufti in the interpretation of a specific provision, or the application of the principle of the principles of Sharia and colleges.

Is that what happened went in another direction Ola Bafattaa to rank as Mufti and street stands the shrine of the Prophet e, or that an interpreter for God.

Abu Ishaq says Shatby: “The Mufti Street from the face; because as his law either switched on owner, either derived from the transferee, the former where the amount, and the second where standing in his place in the establishment of provisions, and the establishment of provisions but it is on the street, if the مجتهد create provisions according to view and diligence is … And on Vamufti sentence informant God Kalnba, and site of the law acts charged according consideration Kalnba, and take command of the nation a succession Kalnba publication… If it is proven this was based upon another meaning… The fatwa of Mufti get one hand to say, work and recognition”([11]).

And adult more Shahabuddin Quraafi - God's mercy- Said: “Example ruling Mufti with God is an example Judge, and God ideal, give two: One deputy in the provision, and the other interpreter between him and Aloaajim. Valtrgoman must follow those letters and words from the ruling, and under which tells of increase nor decrease; This is the Mufti, he must follow the evidence after extrapolated, and tells creatures including appeared to him to not increase nor decrease if the Mufti diligent. Though an emulator also in our time, is vice industrious in transporting spent imam those يستفتيه, he Klsan imam and translator for deceased”([12]).

This adaptation of a fatwa - and diligence generally - came out for what they are, which is to express an opinion
In the interpretation of the text or a set of texts, and gave to the Provisions of the declaratory opinion recipe Sharia hard text hyperbolic roses and significance in the texts of revelation, which helped
To make greater use of fatwas such statements:”God's judgment”Or “The rule of Islam” Is well…

Since the third century, who founded the religious landmarks, signs legitimize tradition, became the fatwa mainly based on tradition, and as far as the multiplicity of opinions former multiple “God's judgments” In opinions relating to the same incident. Which prohibits says: It is the law that deprived, and which permits confirms that it is not permissible except as permitted by law. In a few cases is inferred every mufti verse or verses from the Koran without knowing the meaning: ) They not ponder the Qur'an Had it been from other than Allah they would have found therein much discrepancy (([13]).

This face has reached a negative opinion peak at the present time which intertwined problems and political objectives and economic and social development, and facilitated means of communication and the dissemination of ideas the scientific progress that has near-term, and enabled individual address of wants in all the continents of the world and the Oshalla.

On the other hand took every Islamic state constitutional system identifies authorized institutions empowered to determine the binding rules (General sense law) In the organization of society and relations of coexistence between its members, which resulted in a “Overlap in jurisdiction” Between these institutions and between “Mufti”, And thus the existence of contradictions and collisions in quite a few of the provisions of the law and advisory opinions, and this is what we are dealing with briefly in the second paragraph.

Second paragraph: Problem of duplication of law and fatwa

Confined cons fatwas by sometimes in conflict between the provisions Mufti, especially in later times that seized the tradition on which more muftis, with multiple views on per incident, and within the same denomination, and the absence of the actual seizure of civil Ifta.

These negatives still exist and have doubled their means of modern publishing that enables Mufti of reporting fatwa to thousands and millions, while Mufti old is limited to the transfer of his fatwa orally or in writing to the respondent alone, and if meant writing has seen it from able to read the manuscript left by Mufti.

Today is in addition to all this the biggest problem caused by taking all Islamic societies of the modern state system, based on the constitutional institutions which alone has the issuance of binding rules of social behavior modification and cancellation, which a strong disturbance in the coexistence and compatibility between systems “Law” And”Fatwas”.

Although the Muslim world has suffered from this anomaly since the beginning of the last century - and suffering now more- The search for a realistic solution has not started yet.

Raised some opinions or proposals on the subject, but it seems far from achieving the goal and end the confusion that disrupts the community, and deprives it of tranquility and sound vision for the interests.

There are those who call to Palace fatwas on people, but this invitation old has not benefited in the past, and her testimony today beyond the simple reason is the difficulty of diagnosing objective criteria are applicable, and to reach a de facto discrimination between qualified to issue fatwas is not available on the conditions, in addition to not find a party that . And if we imagine to keep busybodies away leaving only qualified, do you solve the problem? : No, as long as it does not end the multiplicity of views of the muftis, and does not address the dilemma of combining the Fatwa and Legislation Law.

It also provided an invitation to a criminal penalty is being applied to a fatwa without the availability of knowledge qualified him. It seems clear that this call far from being like its predecessor, as well as easy to move to any place in the world for issuing fatwas him, and regional criminal law applies within the territory of the State which issued and beyond to other.

Perhaps the most important suggestions raised in the Multi-Ifta is: End fatwa individual and collective compensated fatwa, the proposal aims to overcome the situation causing where Ifta today, but how come the proposed collective Ifta?.

On the one hand is now available in Muslim countries or governing bodies posed for Issuing State
Or scientific institutions or bodies of scientists, including “Islamic Fiqh” Of the Organization of the Islamic Conference in Jeddah, however, nothing has changed in the reality of life in: Ifta singles continued, it did not receive Ifta collective any concession practical, and institutional break with the legislation did not touch, so the situation remains as it was.

On the other hand called for more than one diligence and collective advisory based on the assumption “Scientists” Themselves - within the limits of the country concerned or at the level of the whole Islamic world - choose from they present to the membership in the Council of diligence or advisory, senior scientists or deep knowledge in science, or are known for their religious knowledge and integrity… However, all these descriptions fit for laparoscopy and controversy, and defies reality and standards implementation. Who can practically defines specifications “World” Which has the right to be in the electorate, and”World” Whole descriptions maturity Fatwa Council membership?.

Proposal:

Topic is of paramount importance not addressed by the opinion of an individual, not a group of individuals. Everyone must feel the seriousness of the reality-based the legislative regime importer, and Iftaa system inherited confer on the Mufti recipe “Prophet” Or “Translator” From God - the Almighty -, what caused today This duality in the Islamic world of violence and prisons and spending time consuming and money, imposes on everyone Find filmmaker to regain the nation Tmonintha and coexistence peaceful, and monitor potential for useful work and contribute to building human knowledge and civilization and guidance to goodness and wisdom …

It must be noted the need to distinguish between the areas of the rites of worship and transactions, what I'm talking about is the relationship of coexistence and social behavior (Transactions), The worship the Review Ifta which is different from assessing the advisory transactions as worship fixed transport even in the most detail, are not affected by change of time or place, nor collide provisions with what issued institutions legislation that limited jurisdiction over the affairs of civilian life, nothing to do with worship and provisions.

Summary proposal:

First: Than to say that Mufti interpreter of God, or the detector for the eternal judgment of God; provisions of the Ifta often differ, has contradicted analysis and prohibition for the same behavior, or health and invalidity for one act, and the provisions of God is no difference between them is no contradiction.

Valavta - and diligence generally - but be in the presumptive significance texts, and then the Mufti not disclose the actual expensive for the eternal judgment of God; because commissioning including unbearable, and sincerity of Imam Ghazali when he said:

“It is considered the doctrinal issues that do not text([14]) Necessarily aware of the absence of conclusive evidence, and if the directory negated Vtklev injury is not conclusive evidence mandated shops, if negated commissioning negated error. If it is said: By the presumptive evidence the agreement, it is a mistake the indictment is mistaken directory. We: Emirates presumptive not evidence Boaaanha, but is different additions, FRP evidence that likely to Zaid, a specific benefits not likely to Amr with his tags, and may be useful to think of one person in the event without event, but may in the right one person in one case in one issue manuals … The cornerstone Emirates magnets move, of course, suit also moves the magnet iron without copper”([15]).

Based on this analysis convincing of Imam Ghazali, the Mufti follow what he thinks it most likely, and may be rightly or wrongly, and in particular in the cases of the plurality of opinions and contradictory implications.

Secondly: Considered operative Fatwa Mufti opinion in the interpretation of a particular text or a set of texts which this account does not acquire Description “Binding legal judgment” Once declared, but must take into account the views of other on the same subject:

The coincided - and rarely happens compatibility- There is no problem, and follow the procedures governing the Legalization mandatory provision in question.

Although the applied differ means by which to reach opinion to approve the application, which seems the most likely bond, and more suited to the reality of the nation and its interests. And that this will lead to the following results:

-Maintenance of the unity of the nation and avoid what God has forbidden band) who split up their religion and sects not one of them in something (([16]).

-Keep Fatwa as purely human, which imposes revised constantly in search of understanding the most appropriate to follow what God has revealed, as the year of the deposited by rights in dealing
Every generation of it with previous knowledge.

-Stay within the limits of normal jurisprudence Addressing to the social realities of life as experienced by the people,
Without flying in the skies of the imagination and a swim in the metaphysics.

To say that the Mufti translates from God, or prescribed provisions Kalnba entail him serious negative consequences, everyone knows to receive his share of them:

-Help nation splitting into denominations and sects, then rivalry with violence, and bloodshed on the pretext of each team's defense “God's judgment” That brought him to his diligence.

-Contradiction in terms, all of which are attributed to God and changed climate fatwa.

-Adhere to the provisions of discretionary were appropriate to the time and circumstances of their issuance, and by virtue of the change
These conditions are not achieved interest for which they embarked.

Thirdly: Commitment in the fatwas and opinion fundamentalist principle, which take into account the results and effects
In fact Living.

Abu Ishaq says Shatby: “Consider Malate acts considerable unintended religiously, were acts approval or violation, so that the industrious do not judge the acts of the charge sanctioned or refrain only foresight to which accrues to the act, a project for the benefit of the elicit or corruptive ward off, but his fate . If fired say in the first legitimate perhaps led bring in interest in it to the evil equal interest or increase them, so this objection to the launch say legitimate, as well as if fired say in the second wrongfulness probably led Astdvaa corrupting to evil equal to or above, it is true launch argue that . An area of ​​the hard-working difficult supplier, but that he was tortured taste, Mahmoud الغب, a neighbor on the purposes of Shariah”([17]).

Many of the fatwas today do not take into account this principle, and only reproduce the views said in another reality, and in conditions different from where we live, for example,: Ifta that Islam:

-Does not require documentation of the marriage contract, and that the contracts where there is offer and acceptance with the presence of two witnesses or publicity is legally valid, albeit “Law” Country concerned imposes documenting the marriage contract.

How this provision attributed to Islam in the light of the nature of the social life of living characterized by movement and unlimited mobility?. Is not it is certain that the lack of documentation leads to the loss of a significant proportion of couples
In their rights, and tens of thousands of children in Onsabhm?.

The many examples of these opinions known and there is no need to prolongation by stating.

IV: ـ Measure the difference and move the opinion of the individual (Mufti) To the binding force:

This is the most difficult problem, but without the dissolution will not disappear cons Ifta in which they now live the Islamic world. The reason for difficulty he the concept Issadm added generations fatwas and its relationship with texts and provisions of the law.

The means of dealing with the opinions of individuals and move them to the “Foundation” That decide what should be in the subject matter addressed by fatwas may vary from one country to another Islamic; Valosasa in this deal is the fundamentalist principle that says: “Guardian opinion raises controversy”, And the concept of “Guardian” In each country determined by the constitutional order which remains susceptible to enriching the proposals that make the institution “Guardian” Notified body of the community in the exercise of the power to raise controversy.

But before discussing the idea of ​​raising the dispute by guardian must determine the position of the perception that offers its Multi diligence in jurisprudence, and in particular the nature of the opinion discretionary, is it just a subjective opinion in the interpretation of texts Sharia, needs to compare the opinion or dissenting views, then comes the stage “Islamic ruling” Final everyone must abide by and comply with its requirements?.

In the case of the introduction of the second air conditioning keeps talking about “Renewed the fatwa” And avoid the bad effects of the current mess Ifta controversy theorist does not seem investigator disappointing unwanted.

Conclusion:

I understand from the words “Renewed the fatwa” الواردة في عنوان هذه الندوة أنَّ الهدف هو البحث عن الأفكار والوسائل التي تمكّن من الوقاية من آثار الفتاوى التي أثرت على التماسك بين فئات المجتمع ومؤسسات الدولة، وساعدت على الفتنة المكلفة بشريا ومعنويا وماديا، لا يقتصر ذلك على فتاوى من يوسمون بالتيارات الضالة، وإنَّما يشمل أيضا الإفتاء المتعارض مع التشريعات الصادرة داخل كلّ دولة إسلامية، دون تحليل لظروف الواقع ولا عرض للموضوع على كليات الشريعة ومقاصدها. Instead of the search for ways to treat duplication and sources of legislation, only the statement “Legal rulings” Ifta, while ignoring the requirements of the legislation, released by the constitutional institutions, and calling “Positive law” Which means in the general custom: Law developed by humans instead of law that was revealed by God, and the results of that does not need to be stated.

And proposals made by the subject of the fatwa just trying to raise attention to the fact that the fundamental problem in the advisory is to adapt the provisions contained therein is the opinion of the interpretation is not binding, binding depends on the approval of the institution that conferred the nation validity of the report? .

وأهمية الموضوع تفرض إسهام الجميع في استقصاء عناصره والبحث عن الوسائل المفيدة في علاج سلبياته.

May God grant success to others to provide what is best which I referred a Ute bounty of wills, not waste the reward of the best in. ) Say work soon will Allah observe your work and His Messenger and the believers (([18]) Great truth of God.


[1]– 4/473.

[2]– Verse 43 ) O Dear public Avtona in my vision, if ye vision Tabron (46) Joseph Dear friend Please tell us in seven fat cows (.

[3]– Verse 32 ) O Dear public Avtona in what you categorically warrants is to bear witness (.

[4]– Verse 22 ) Nor Tsf including one of them (.

[5]– Verse 41 ) فاستفتهم most important most created or created (?.

[6]– ) And alresalah in women Say God Evticm therein (verse 127 And) alresalah Say God Evticm in FATIGUE (verse 176.

[7]– Restriction “Not binding on the face” Submitted by scholars to distinguish between opinion and judgment is limited to the muftis of the Prophet e, The fatwas are binding law of God, rather provisions Ayati Nisa mentioned above.

[8]– Ibn al-Qayyim them in: Media signatories, and Muhammad ibn Yusuf al-Salihi Shami in his book: “Ways guidance and Rashad”.

[9]– He Abu Abbas Ahmad bin Yahya Alonharisa died in 914 AH, which was printed that he had collected from the fatwas in three volumes titled: “Ma'yaar and Morocco Mosque opinions of people of African and Andalusia and Morocco”.

[10]– Abu Issa Mahdi Wazzani Hassani, who died in 1342 E, and named his book: “The new standard expressed Mosque
For fatwas latecomers Morocco”, Has been printed in twelve volumes huge. This book is known also known as “Major calamity”, Which popularized the use of the term “Calamity” Synonymous with the meaning of “Fatwas”, But found it distinguishes between the two terms on the grounds that “Calamity” Limited to the facts that actually occur, then ask the ruling befell him, while the referendum may be on the facts of the hypothetical. In practical terms, there is no such discrimination.

[11]– Approvals: 4/245.

[12]– Clinch discrimination provisions fatwas, and the actions of the judge and the Imam, p.12. He added, pp. 28 and 29 that the Mufti “Tells of the appropriate directory has is Kalmtorgom God  and grandfather god ruling Ktorgoman tell people what to find in the words of the Governor or plan… Fatwas that do not accept copies to decide Sharia”.

[13]– Verse 82 Nisa.

[14]– Any: Text incised constancy and significance.

[15]– Almstcefy of genealogy, 2/365 -366.

[16]– Baheerah verse 159.

[17]– Approvals, 4/194.

[18]-Verse 105 Tawba.

* Evolution science symposium in Amman ” Jurisprudence of calamity and renewal fatwa”

Held during the period: 13-16 April 1428 / 1-4 April 2007

Oman – The Ministry of Awqaf and Religious Affairs

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