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Jurisprudential opinions between the evidence and the rules

Fatwas jurisprudential Between the evidence and the rules *

Preparation: Hojjatoleslam. Ahmed excludes

(Director of the Institute of Jurisprudence and rights, and official compound rounding between doctrines Qom, the Iranian Republic)


The fatwas is the last stage preceding two stages, namely,: Science preparation stage which is an introduction to the development of vocabulary and rules, as a science assets and men, know-how and… The elicitation phase, and after moving Faqih of those science Almekdmatah to elicitation phase, and extrapolates the ruling comes round to enter the third phase, issued fatwas that provision Astenbth.

Were it not for this last phase of the lost efforts that get in the previous two phases; since the diligence before arriving to this point has not been implemented to the community after, what is no more than about being an order obtained in an atmosphere of personal contriver, is that after the fatwa ruling contriver, takes diligence .

Accordingly, any practice designed to eliminate this phenomenon mean the demolition of the bridge link to the people Islamic rulings, but who should be mentioned that the demolition was not the offense for the origin of fatwas, or take a negative attitude towards it, but there are other practices lead is also to subvert the status of fatwas .

Many of these practices are in one of the following four resources:

1) حالات النقص في عملية الاجتهاد.

2) التصرفات الحاصلة في ضمن عملية الفتيا نفسها.

3) الأدبيات التي يتقولب عرض الفتوى في إطارها.

4) الممارسات التي ترمي إلى تقوية الفتيا، وهي لا تجيد الدفاع عنها.

Has poured this article efforts on the first resource, Vetodh some problems and gaps in the process of deduction, and negative impacts on the movement of the advisory opinion;, we say that there are two parts of the shortfalls in scientific inference, it was for them to influence the basic make fatwas are unable to keep up with the demands of life:

First: What is a case of a lack of evidence toward diligence process.

II: What is a case of a lack of diligence process toward rules.

* Here's to clarify each of the sections:

The first section: What is a case of a lack of evidence toward diligence process:

And the shortfall toward evidence of either lack of knowledge of some of the evidence, or neglect referenced.

There is ample evidence did not get the table formulate scientific knowledge, and, of course, is not due to the elicitation process only slightly, and here we are, for example, suffice mentioning the two guides of this evidence, and are as follows:

1 – Verbal buildings:

And verbal mean the building all my belief possible that Nlbsa to the evidence to prove bass judgment doctrinal issue, and to clarify the more we draw attention to several things:

First: إنَّ الكثير من الاعتقادات التي نؤمن بها قابلة لأن ندخلها في عملية الاستنباط للاستناد إليها، وعمق قابلية بعض المعتقدات أن تلعب دور الأدلَّة، يبلغ إلى حدٍّ رُبَّمَا لا يفتح الطريق المسدود الذي واجهته عملية الاستنباط إِلاَّ بإدخال معتقد كلامي في هذه العملية والرجوع إليه؛ وذلك لأَنَّ المباني الكلامية تشكل إطاراً كليّا تأطّر الفقه به، وعليه فينبغي للفقيه المتفطِّن لذلك في استنباطه للمسائل ألاَّ يذهب إلى أحكام لازمها خروج الفقه عن ذلك الإطار، ومن هنا يسهل جدّا الإذعانُ بأنَّ المعتقدات الكلامية لا يصحّ أن نَمنحها في مجال الاستنباط دور أداة شاملة يثبت بها حكم كُلّ مسألة فقهية، فَإِنَّهُ ليس بوسع الفقيه تعيين كافة الأحكام اعتماداً على معارفه وتصوراته الكلامية، بل الممكن فقط إثبات الحكم بها فيما إذا وجدنا اقتضاءً بشكل منطقي للمعتقد الكلامي بالنسبة إلى الحكم الفقهي.

Secondly: Although the verbal buildings are a great deal of importance only they do with what have deep capabilities evidentiary did not reach its proper position, and its influential role in Islamic assets. Perhaps the secret of this is due to that it has not been a serious attempt by scientists to regulate the relationship between speech and doctrine organized logically and technically, and employ speech for this purpose.

Thirdly: It is to the benefit of the doctrine of verbal necessary that we do not have a unblemished thumb impression and mystery for her, and explain: It is sometimes seen as one of the dogmas of words a مكتنفة look vague, so that makes us unable to give specific imaging specificities of her, and in this case if we have benefited from this building to reach the verbal rule of jurisprudential The result of this advantage was not true void reliable.

It is worth noting that if the doctrine has emerged in several aspects of verbal and trends after her appearance fee and holistic framework; this sort of counting the thumb and the lack of transparency.

For example: What some scientists went to him in answer to the question: Is it permissible to zero and speech absent or not? .

It is noticeable they said two things: On the one hand we do not have this discourse divine vision transparent so that we can rely on it to prove the defendant, with no room to claim that this speech of the type letters blockbuster between human beings until the correct inference, on the other hand, the extent of owning those audiences in the world of powdering meat presence issue - We believe the original check in the world of discourse powdering([1]).

2- Foundations Almichrah:

The Balmertkz intended Almichraei: Every sense of depth cemented in the minds of Almichrah arises depends on the statement of the street, or special disposal than in the question of what.

If we do look for this guide, and earnestly refer to it in eduction, to be able to really open doctrinal files with great capabilities in many of the issues.

Find Authentic based Almichraei and the origins of its formation and function benchmarks it, and its divisions Mukul to another shop([2])However, we limit ourselves here by mentioning some of the areas that affect Almichraei based on the development of governance, which are as follows:

First: Whether it is performed based himself a legitimate judgment, then makes an argument on this pivot performed, and Lefty this provision, and can represent so بارتكاز passport treatment with a non-Muslim.

Secondly: Whether leading to a rule-based legitimate if we say the requirement of intent to wash the dead on the grounds that this washing cult in fulcrum Almichrah the. Valmertkz is only Ebadith we proceed from this based and Nafti requiring faith in which an enclosure that all worship which requires faith.

The difference between these two areas lies in the fact that the first referee to take advantage of the same-based while indirect utilized in the second.

Thirdly: Set Sgriaat the provisions are in Kipriadtha information.

To illustrate say: There may be provisions in doubt some of the resources you are Massadagaha and Sgryatea or not? .

Or, for example, may ask: Do put Almtnges thing everybody on the Koran HTC him until said بحرمته or not? .

The second section: What is the case for lack of diligence towards the rules, and are several things:

– Do not try to provide Find some Alastenbatih rules to the extent necessary.

-Application of negligence some Alastenbatih rules.

– Try to apply the rules without precision and skill.

Here's to clarify all these things:

*- The first command: Do not try to provide Find some Alastenbatih rules to the extent necessary.

A lot of the rules that our hands did not meet the right of study and research, They are very تتعطش because we draw the attention of scientific and widely even getting mature, and give them even deeper in search reveals more of the dimensions and angles more broadly.

These rules and cultivars:

Rules that are still implicit ارتكازية, or Researched initial primary and in our research and Astenbatatna, with the fact that we desperately need to search by detailed.

Can represent a base: “Governance and fit Thread”, And base: “Leave”([3]) , Which have very great importance.

Rules that did not search her little scientists such as in the first category, but they require a study with widely than has happened where, based on what is of great importance on the one hand, and the presence of corners Aktnfea ambiguity on the other hand.

Can represent a base: “The fact that the year explaining the Qur'an”; They despite being critical Despite Astbtanha to be great savings to invest in the elicitation process, not looking her thorough research detailed and مذيلا the theories.

To illustrate more say: إن الاستفادة من السنَّة لبلوغ حكم القرآن قد احتلّت مكانة مرموقة ورصينة في الفكر الأصولي والفقهي، حيث إنَّ هذا النهج عريق وممتزج مع ذهينة العلماء، إلى درجة أنهم لم يكونوا أن يأخذوا حكماً من القرآن إِلاَّ بعد مراجعة كلا هذين المصدرين، وتجذُّر هذا النهج في التجربة الفقهية بحيث لم يقدم أي أحد من أي مذهب كان على رفض وإنكار ضرورة ذلك، فأصرَّت جميع التكتلات الفكرية السنِّية، ابتداءً بالمذاهب الأربعة ومروراً بالظاهرية وأتباع مقاصد الشريعة وانتهاءً بالسلفية، وجميع التكتلات الفكرية الشيعية الإماميَّة أيضا ابتداء ً بالأصوليين وانتهاءً بالأخباريين، وكذالك المذهب الإباضي‌‌‌ والمذهب الزيدي أصرَّ كُلّ أولئك على السير على هذا النهج.

However, the acceptance of this sense by all parties and ارتضاء all aggregates intellectual him does not mean - necessarily - flush their views on this subject, and it should not be considered varying opinions in this regard varies superficial and of little importance; because there Bona vastly and a big gap and varies greatly among some .

In this context it must be recognized that serious shortages suffered by Study “Attention and action during the year against the Koran” Is not to study the opinions expressed in this regard, a comparative study, there is no discrepancy between the views, nor depth gaps and distances between them, and the logical conclusion-per-view, or echoed in creating the historical advantage of the Koran, size, or how it is done, not every opinion and evidence… Study is not any of these things thoroughly studied in the context of deep application.

What check it out as head of issues individually, and studies scattered and confused at times, did not live up to the open horizon transparent to the deduction in order to benefit from the Quran, it is natural that the failure to address it and not study resulted in a vacuum and shortages and ambiguous seriously in this area.

To open this file may be useful topic is to identify the main theories and studied, and that form is the hidden layers - and sometimes phenomenon - behind the different opinions in this area.

These three theories, which are as follows:

1- Theory of Change.

2- Theory of interpretation.

3- Theory detail.

Have confirmed Theory of Change To create a shift in the Murad verse at the hands of the year, as the theory of interpretation tightened to extract things inherent in the verse from the year before, while the Theory detail Emphasized add other points on the verse as well as the significance of the past, on the one hand and on the other hand include Nzerita the detail and Change phenomena Alqraana in circle “Shown” No “Overall”, While longer Theory of interpretation الظاهر قسيماً للمبيّن، وليس في مرحلة أدون منه، ومن جهة ثالثة تنفي نظريتا التفسير والتفصيل -خلافاً لنظريَّة التغيير -وقوع أيّ تصرّف يؤول إلى تغيير في مراد الآية من قبل السنَّة، مع فارق أن نظريَّة التفسير تعتقد أنَّ السنَّة تكشف النقاب عن المراد الجدي والواقعي للآية، وأنَّ الآية تستبطن ما قدَّمته، في حين أن نظريَّة التفصيل تشدّد على إضَافة تفاصيل وجزئيات تفوق مدلول الآية نفسها ولا تغيّرها، وتعتقد نظريَّة التفصيل -طبعاً- That the details added أوحيت of God to the Prophet Noble e([4]).

*-The second thing: Application of negligence some Alastenbatih rules:

What happened on the ground is a slim advantage and limited from headmistress rules to verbal methods generally accepted in the elicitation of the Koran, and if we accept that the Quran came down tongue customary conversation must accept the possibility of the use of the rules of this conversation in the elicitation of the Koran. The truth is that if you could prove that God - the Almighty- These methods use the same words generally accepted, for then possible to devise many knowledge of the Koran. To illustrate more say:

It can be explained by the fact that the word of God Almighty custom tongue and course wise Bnhoin the:

-As the first: Is to look at the negative side minimum of it, and say: That God does not use words that are outside the scope of custom, have unknown.

-As the second: In addition to the negative side, that God used the best arts and popular methods of words when custom made for the delivery of his way; which seems to be the second interpretation is the correct.

The following is a reference to the some blockbuster customary rules that should be applied on the Koran:

1-Metonymy base:

When accepted custom use of metonymy, but was told: «Metonymy informed of the statement, Valmtkelm use metaphor in his speech to a statement unintended. The question of whether God used this method in the Koran?

The us that He used the metaphor in the Koran must be judged contriver it appropriate to means Alknaúa the.

For example,: Verse: ) Not less than two EF (([5])On the basis of this verse as including the meaning of Knaúa, it must be said that God did not finish to say 'F' for the father and mother, but in place of metonymy forbade إيذائهما, a jurists say: “The same thousands of not ending it, it is a metaphor for the Prevention of beaten and إيذائهما”. This with some benefited from it because it deprives be said for the father and mother 'F', and The sanctity beating is utilized verse accidentally priority.

The difference between the two is clear, the former sees no possibility of proving the prohibition on the words «F», for them this verse, but forbade God Enaah for إيذائهما, so if you do not say «F» harm to them is not forbidden, and if there are other act which .

To say the use of metaphor in the Koran correct on the basis of believe the second بالنحو, the metonymy when custom Informed of the statement, and the presence of proverbs in the Koran is evidence of this defendant.

2- Take advantage of the context in understanding the Quran:

If Anna Turning to the speech market, we take advantage points can not Nstvidha the words and phrases that speak, but Nstvidha of systems and order in sentences, and this is called the context of speech.

And whenever the speaker more informed and to inform the subject of his talk, the words around can take advantage of context better and more. If the speaker is God Alim Hakim, we are in front of a Two:

First: To pretend that God even though it is an absolute world but introduce make demands and important points in the folds of his words, and his leg is also marketed commoners words, devoid of accuracy, Alzerafah and scientific jokes. However, this percentage and interpretation of the word of God and a clear nullity; it is how poets can deposit - for example - in poetry types of science and accuracy and Alzerafah, and the word of God Almighty be empty for this important feature!.

The second: That although God addressed the people in their own language, but it is deposited in the words of knowledge and wisdom as their understanding, and it is deposited in the context of his words Alaltvattat and • HeAvEnWaReZ gUeSt.

فيتضح this provided that the knowledge learned from the context of the Koran are the great sea, and an important opportunity in the hands of the people of eduction, but unfortunately did not take advantage of this opportunity in the denominator in jurisprudence and eduction assets.

Although the elicitation of context is an important opportunity, but it doubled the possibility of making mistakes, they must be competent to learn the rules of how to deal with the context and the deduction from.

It rules that can be useful in that:

1 – That this is not contrary to the apparent context the rest of the verses.

2 – It is very important attention Baldmaúr, and signals… To know the context.

3 – There are verses in hand other verses, but they are not out of context.

So it must be accurate and meditation to know the context; it is possible for any one to interpret according to understand الموهوم; Hence, the establishment of special rules other context to access knowledge and contextual understanding of the subject agree custom is very necessary.

And here we come to apply to this rule stated in the words of the scholars, some say after the reference to the verse: ) And we were so tormented send a messenger (([6]): “Confusion in a verse indication patent بأبلغ the face; because it seems that verse due to the Day of Judgment, if you want to torment where is the eschatological torment; to Oroadha in the context of the verses on the Day of Resurrection, a verse: ﴿وَكُلَّ إِنسَانٍ أَلْزَمْنَاهُ طَآئِرَهُ فِي عُنُقِهِ وَنُخْرِجُ لَهُ يَوْمَ الْقِيَامَةِ كِتَابًا يَلْقَاهُ مَنشُورًا * Enough read your book yourself today you حسيبا * مَّنِ اهْتَدَى فَإِنَّمَا يَهْتَدي لِنَفْسِهِ وَمَن ضَلَّ فَإِنَّمَا يَضِلُّ عَلَيْهَا وَلاَ تَزِرُ وَازِرَةٌ وِزْرَ أُخْرَى وَمَا كُنَّا مُعَذِّبِينَ حَتَّى نَبْعَثَ رَسُولاً﴾([7]).

The quotient placing the hand on the context in the Quran could help the process of deduction, and it is through precision in the context of sentences Quranic can open a window towards the elicitation and detect the optimal use of the concepts of the Koran, to roll jurists for wings seriously in the introduction of the Koran in operations eduction in within specific programs and frameworks .

The third: Try to apply the rules without precision and skill:

The provision Find some Alastenbatih rules and not to neglect the application of certain rules in the field of eduction does not pass all the obstacles, but that even after reassuring the availability of these two things, should pay attention to that there is another phase we face in the elicitation, a stage application of the rule. Since the application takes upon himself the task of detecting the content of the text and provide legitimate awareness and knowledge بمراد the street, it should not be considered stage superficial naive, but the stage is important deserve to stand when accessed and stop making precision.

And the application that precision is in isolation at risk contriver rhythm in either of the following:

First: Overloading rules fundamentalism task of questioning the text and employ more than estimated.

In the illustrated say: It is natural to not be able to rule sometimes play its role expected of them, and that is to make the understanding of the text accessible to contriver, but that may come from being a case of ordinary and turns into a problem has negative repercussions on the deduction, and this problem get in every resource is B_khasastin:

First: The text was susceptible because be Mstbtna to the spirit is the meaning Azarmenh.

Second: Contriver was overly focus on al-Qaeda as a mechanism for dealing with text.

In such a situation, graduated from being a base to understand the mechanism to be - a spirit that lies behind the Metn - and become a positive tool for conviction contriver a literal understanding of the text and take his sense Suri.

This fact is prompting us to Nasal base and establish here if it takes into account the distance would have been us in danger of falling on dry apparent inertia of the text, and this rule: “Unnecessary taking the spirit of the law in every resource we found the text property”.

He knows that this introduction is needed even though Langer not to work the popular base of rules fundamentalism.

If we look at the books of jurisprudence, we find some scholars may Raawa this rule even ارتكازي, and these Imam al-Nawawi in total, where he criticized the nursery went to prove to an unbeliever, and built this criticism for being contrary to the spirit of the law([8]), As the imam of them gems where he was owner that may happen in the use of some grammatical confusion ills of the mind Fimnah for access to the right([9]).

Second: Application of the rule in the case of REO ذهنيات Antzaih and far from purely to look at reality.

It is no doubt that each text ambience and conditions social released where, as is no doubt that there is some sort of connection and harmony between a text and its meaning, and the conditions under which issued the text in, and the recognition of these two things makes us realize that there is no true separation of text from the atmosphere and the conditions of which, .

On that basis it if it was “Process invoked by the rules to interrogate text” Far from the look comparisons and circumstances Almktnfah of the text so it is the realization of her - any rules – Wildly inaccurate, other than if we try to understand the text with canthus intellectual ground where formulas, the application of the rule in this case would get in an atmosphere of science and precision.

An example is the authoritative base to emerge, the application gets two passport: With precision and whether we have tried to get the reality of rote ourselves in the light of canthus relationship with the text of the circumstances in which they issued and no accuracy, a rote that is without trying to figure out the situation surrounding text.

[1]) See: Refining assets, 2/41.

[2]) She has written a detailed letter pillars still manuscript.

[3]) I have written an article about the leave, published in the Journal of the jurisprudence of the household, number 26.

[4]) I have written a message about these theories is still the manuscript.

[5]) Al-Isra: 23.

[6]) Al-Isra: 15.

[7]) Al-Isra: 13-15.

[8]) Says: “Said Abu Saeed Alastchri,: Prove custody of the infidel Muslim Abd Hamid bin Jaafar from his father, has've included the above methods, has said the workbook: It is abrogated. We say: This modern quoted by Sayers certified the custody of the mother infidel Abu Hanifa and his companions, Ibn al-Qasim al-Maliki and Abu Thor, and went public that it is not a nursery for an infidel to her son Muslim. And replied to talk to the foregoing of the article, including the turmoil, but talk Bosanidh and methods fit to protest it, and forbidden as turmoil replace argument, which Kafr mother and the choice would prove. These two elements are what is going on around them rule. Perhaps the workbook protesting in public copies evidence, interpretation of the meaning: ) Will not make God for the unbelievers on the believers a way (and about 'tops Islam', have been shown'm saying the Almighty values: ) O ye who believe yourselves and your families against a Fire (to pasture first in the absence of constraints or Alasthem lot What is the fittest for a small, and whatever it was from the absence of constraints or appointment or ballot, those restricted, saying the Almighty) Ward off yourselves and your families against a Fire (and recounted all : Conflict of parents when the boy is better for a child between the two ruling chose his father, said his mother,: Recycle anything of his choice? : Tbosna mom every day of the writer and Faqih Adharbana, and my father let me play with the boys; judged by the mother. He guessed that Ibn Taymiyyah If the spirit of Islam requires taking into account the benefit of small. The is no doubt that throw him into the arms spend a minimum goodness and other. And then have a line Abu Sa'eed Alastchri and Abu Hanifa and his companions, Ibn al-Qasim and Abu Thor.

[9]) Jewels speech of Sheikh jeweler, 41/134-136.

* ندوة تطور العلوم الفقهية فِي عمان ” فقه النوازل وتجديد الفتوى”

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

Oman - Ministry of Awqaf and Religious Affairs

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