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Look to the jurisprudence of the care of children and orphans

Look to the jurisprudence of the care of children and orphans *

In light of the position of Muslim jurists of rooting the concept of personal

Preparation: Meets all the conditions legitimacy. D. Ibrahim enough Dunmz

(Faculty of Theology, University of Marmara, Istanbul, Turkey)


Has occupied assertions on the importance of marriage and the family institution, and arrangements are compatible with this vision basic and derived, and received detailed in the Holy Quran and the Sunnah of the Prophet PBUH exporters core of Islamic jurisprudence, occupied position and extensive heritage of Islamic jurisprudence, and studies contemporary multiple. The issue of child care (And maternity related closely) Also has an important place among the issues included in these studies. As the first of many Islamic scholars known for their studies in the fields of philosophy and ethics special attention in this regard from different angles, the jurisprudence relating to children (The provisions of the fetus, who is still in his mother's womb) Has been studied extensively in all the books of jurisprudence and its branches. Some scholars have singled out independent applicants books on jurisprudence for children, as well as the researchers prepare contemporaries independent studies in this topic. The rights of orphans and their care and their own interest, position of the Quran and Sunnah in this aspect and scientists devised their provisions on this subject was clear and very distinct, and how we could not find something similar in any other religion or another culture.

As well as scholars gave special attention to issues of guardianship and trusteeship of what these two subjects, in close correlation to the protection of orphans and children, the starting points of the texts of the Quran and Sunnah.

The bottom line: That what is stated in the Quran and the Sunnah of the provisions and principles and conclusions scientists in Doihma, especially doctrinal heritage in these matters, all still a source of inspiration not only to the Islamic nation but for the whole world. It is the clearest evidence of what we say impressive owners of other religions and cultures of institutions and arrangements by the Muslims in the care of children and orphans to a nearby covenants, which contained the perfect examples in this regard.

We are in our paper this will not talk to the regular tariff information on the care of children and orphans (And stated in the Quran and the Sunnah of evidence and jurisprudence derived them and detailed presentation of the views of sects and their differences) Leaving this matter to the Blog publications and articles, and papers that are likely prepared in accordance with the present framework. We will focus on the concept of “Rights jurisprudence” Which is the focus of this topic we address in this context, the views of Muslim jurists about rooting the concept of person and personality, trying to draw attention to the importance of the sources of the assets of Hanafi in the covenants first in terms of the development of concepts related to this subject, as the jurisprudence relating to the care of children and orphans inspired by those views .

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Concept of a person

Person as a jurisprudential and legal term means: Who is worthy of rights and obligations, which is the object that has the rights and obligations. And talk about the rights and obligations which is one of the basic concepts in the legislation linked to the existence of an object called people. And the person in other words, is a necessary element to acquire the rights and assume the obligations. Although some theories say when the interpretation of some easements relating to immovable property that the owner of the right is the money is transferred, not the person but the intention here is not the lack of a “Person” Mentioned in the relationship, but its meaning is the fact that a particular person is([1]).

The word “Person” In a legal term (English and German “person” The French “anyone”) Means the object that has acknowledged the legal system the ability and the authority to acquire rights, which means that this concept reflects the object is not a normal legal. The use of Roman law to denote the person's word “person”([2]) Which means the mask worn by the actor on his face when mounting the podium for the theatrical presentation and يبدله by people who represent them, I mean in the point of view of some that the Romanians were considered the ability of being a personal mask clothe the legal system of objects by certain groups object belongs. ([3])We find in the literature of Islamic jurisprudence from the jurisprudence books composed in the early centuries it has been the theme according to the foundations of personal and existential (Ontological), And it was tied considered civil paragraph vertical concepts of personal “Man” And”Human” The human condition is considered the only civil rights and obligations.

In the process of rooting the establishment of civil rights and obligations of the will of the person, we see in these the inference verses literature focused on property rights durable as it is an object of the responsibility, and what comes out of it from the data and words that predict his will relate the results and the provisions of([4]).

In addressing the subject of the book's civil “Evidence calendar” Which is considered one of the first books Hanafi jurisprudence, as well as in the literature that came after him fundamentalism and the basis of the concepts of “Secretariat” And”Disclaimers” And”Testament” Which came in the Quranic verses we see that the infallibility (The original presumption of innocence) Freedom and remember property rights within the rights granted to man since the birth (The rights of God) Within the existential constants necessary for human dignity (Dignities) As contained in those books accurate and in-depth analyzes about the intellectual foundations of the concept in terms of personal rights and obligations of religious / legal([5]).

The subject of eligibility, which is especially important in terms of assignments as well as religious attachment to all areas of law, has been studied in the books of jurisprudence in the form of a theory. The questions about branching and provisions relating to the rights of persons addressed jurisprudence books according to their own curriculum under different headings such as “Stone and authorized sales / sales, marriage, divorce, alimony, ratios and guardianship and trusteeship, endowment and inheritance / statutes… “.

The book was Muhammad Qadri Pasha entitled “Legal provisions in the Personal Status” The first book written in the rights of persons in the context of rationing witnessed by Islamic countries in the nineteenth century. This book, who wrote a draft law, eating provisions relating to the rights of persons with family law and inheritance provisions, although not yet approved a law but it has been published by the Egyptian government and obtained the adoption of a semi-official.

[And بجدر us here that Nsttrd we say: The purpose to maintain and re-establish order in the society of the law, and fact that Mtkona community of people required to be human is the only object that the person described by the legal system. However, an exception to this principle, there were some people like slaves do not consider people in the history of the laws, as some communities were considered independent and separate from the people under the name of persons “Personal legal” Accordingly there was a need to expand holistic concept of a person. And embrace the idea ” Moral person ” Does not conflict with Islamic principles, in the opinion of most contemporary scholars, even if many of the concepts and jurisprudential contain arrangements on this understanding([6]). But it is not true as this result derived from the practical need of negligence or a change to basic doctrinal look and the minute that led to the construction “Personal” On the concept ” Man” (Human)].

Despite the fact that as human people, the principle has no exception in contemporary laws([7]), We find many examples in the history of the laws that some people were not treated as individuals. Come on top of these examples of the ancient institution of slavery known to mankind since ancient times and considered to slave that he is not the owner the right, but is the subject of rights, like funds. This institution has been found until the Middle Ages and then evolved in the form of taking prisoners and the feudal system, and these images continued in various parts of the world to the end of the nineteenth century.

The people in the Roman law are divided into free and slaves. Also, some of were in fact free of their legal status was somewhat similar to the slave mode, so as to not having the right of eligibility because their survival under the rule of the father of the family or its president (pater families). In some legal systems was monks, Almaaqubon, the exiled Baquba, kayaking and do not consider people who are legally.

For example, the institution of civil death, which remained until the year 1850 As a legal institution within the French legislation, it is canceling the personal these groups of people and many of the rights associated. To be considered legally those dead were losing their civil rights and obligations and do not have political rights, and marital interrupted their prayers if they are married and also move their money to their heirs. As well as the Roman law in the first covenants was considered foreign to any non-Romanian citizens that they are not legally people. The situation was no different in the Germanic law in terms of the distinction between the citizen and the foreign ([8]).

The only exception in Islamic jurisprudence from the principle that every human person is to acknowledge the institution of slavery. However, it is clearly evident that all the texts and the provisions contained in exporters bases of Islamic jurisprudence on this institution had two goals, can be summarized cancel this institution gradually primarily giving slaves rights and guarantees with urgency extreme to be their transactions humanity to the maximum degree possible until such time as .

Regardless of the reflection of this principle is the foundation on the scene process, the jurisprudential studies derived from the Quran and Sunnah has made efforts theory unprecedented in the history of law in order to make room for the actions which urges the emancipation of slaves, and the situation has developed and legal rules such as “Mother of the boy and offices mastermind ..” To pave the way to achieve two objectives mentioned.

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Reflections and analyzes attitudes of civil jurisprudence on the subject of performance on the care of children and orphans

He signed differentiate in jurisprudence since the beginning of consideration of human worthy of rights and obligations, and the eligibility to create rights and obligations voluntarily and do, especially since scientists assets of the Hanafi school in the country beyond the river has made great efforts getter for the attention, to develop conventions for this idea and analysis of these terms. The scientists assets mentioned the civil division into two parts as it is in contemporary legal studies, and interviewed term “Civil right” In the contemporary concept of law “Eligibility is obligatory”, While they used the concept of “أهلية الأداء” في مقابل المصطلح المعاصر”أهلية الفعل”([9]).

The scientists focused assets when they talk about what performance and civil divisions, as is the case in contemporary legal studies on the stage of physical development and spiritual human being after birth and special situations surrounding it after reaching a certain stage in his life. It is possible to be a limited civil or unconscious for some reason, despite the arrival of a certain stage (Puberty or adulthood). However, the symptoms except civil “Micro” Do not fall within the framework of the topic that we're talking about.

وأُولى المراحل التي يمرّ بها الإنسان بعد ولادته هي مرحلة الطفولة قبل التمييز. The concept of “قدرة التمييز” In the law represents a watershed because The concept of t to the new legal situation in terms of the eligibility of performance, as it is considered as a criterion for determining the quality of the performance of the eligibility of all persons in all age groups. But the second characteristic of this concept are not included in the framework discussed this, what concerns us here is the transmission of small rank “Incapacitated” To the rank of “Minus eligibility” Performance in terms of eligibility. إن مفهوم “قدرة التمييز” Which has been of particular interest to by Hanafi assets scientists in the country beyond the river([10]), Has been included for the first time in the contemporary legal terms by the Swiss Civil Code.

The bottom line: The distinction is the possession of the person the ability to understand the results of his actions in advance (Perception) And having the ability to act according to that understanding (Choice). Indiscriminate and small, which does not have this ability is a performance in the civil right to non-existent (Incapacitated). While the child who has this capability (Small distinctive) People minus the eligibility of in terms of performance.

The most important result of the legitimacy of that in the opinion of most scholars is the health of the disposal of his own free will with small respect to beneficial بالتصرفات having purely beneficial, acting with the consent of health (Permission / leave) Legal representative (Guardian / guardian) فيما يتعلّق بالتصرفات الدائرة بين النفع والضرر([11]). لم تحدد القوانين المعاصرة عادة ـ ما عدا بعض المستثنيات ـ بداية من سنّ التمييز. As well as respect for scholars, since they did not do that the age-discrimination on the whole, but there are opinions saying the possibility of relying on complete Age seventh criterion is objective in order to facilitate the resolution of disputes relating to the rights of orphans from the side, and Balastinas of modern apostle صلعم around the age of Education prayer for children .

There are other legal case related as well as important in this stage of human life (Small stage featured) It is a concept “Expanded eligibility” Where is called in this case was of the young in the term idiosyncratic b”Authorized”. And the approval of this situation is an important position in terms of the preparation of orphans, and children for life, and equip them with occupations or industries and train them to become self-reliant. As for this position by another remarkable attention, which take into account the idea of ​​respect for the man on the one hand, and taking into account the realities of life and reality on the other hand.

واعتبار بداية سنّ التمييز في وقت مبكر ـ وفي إطار معقول ـ (Kakamal seven years) Is extremely important to protect children and orphans, as it reflects the basic view of the legal system toward the rights and children's growth, and highlights the extent of his interest in freedom of the will and the availability of opportunities for personal development in humans. There is a great similarity between the provisions of Islamic jurisprudence since the beginning and between contemporary legal arrangements that give primary personal freedoms and values. In contrast, we note in the socialist legal systems based on the collective economy, neglect of individual freedoms and personal development. For example,: The former Soviet law sets the age discrimination at 15 years old, remained the Russian Civil Code, which entered into force in 1995, influenced by those previous outlook in the provisions relating to different stages of age for the young (Materials 26 27 and 28).

This, while it reached the age of puberty, which is an important turning point in the stages of human life, both mental and physical, the Quran have been conditioned prove majority (Domestication of majority) To possess the right to dispose of funds([12]) For the individual, where across the Koran for the intellectual level of maturity required to assume responsibilities in life in all respects and do all the legal transactions independently, and used in a separate statement ” Adulthood” Which has had a deep impact on the development of the theory of civil innovative and terminology in this context([13]).

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ولئن صحّ القول بأنّ الطفل له أهمية وقيمة خاصة في نظر الوالدين تفرضها الفطرة، وبالتالي فإنَّه لا حاجة لدعم حماية الأطفال بقوانين وقواعد النظام الاجتماعي، إِلاَّ أنّ المشاكل المطروحة ضمن مسيرة الحياة الطبيعية من جهة وحدوث ضعف وانحراف أخلاقي في مجتمعاتنا مِمَّا نشاهده اليوم من تهرّب أفراد الأسرة بمن فيهم الوالدين من أداء واجباتهم، وسعيهم فقط إلى استعمال حقوقهم بشكل متعسف من جهة أخرى، كلّ ذلك أدى إلى معالجة موضوع حقوق الأطفال على المستوى الدولي، كما تسبب في اتجاه الإنسانية إلى وضع تشريعات مفصلة لتنظيم هذا الأمر. The orphans are exposed to violations of the largest in terms of rights compared with children who are under the care of their parents or one of these parties.

Seems that the issue of the rights of children, orphans and care, which turned into a wound as long, and it became priority problems in most communities, even different manifestations and nature depending on the circumstances specific to each community, it seems that it will continue to retain its place as a problem of increasing importance day by day in the agenda of the humanitarian. For this reason, the attention of the Ministry of Awqaf and Religious Affairs of the Sultanate of Oman on this subject, and give it a special place between the axes of the symposium, is a good choice deserves all the appreciation and blessed. ولا شكّ أن هذا الاجتماع سيثبت من جهة أن العالم الإسلامي والعلماء المسلمين لم يهملوا هذا الموضوع، وسيكشف من جهة أخرى عن أن المصدرين الأساسين للإسلام ـ أي القرآن الكريم والسنة النبوية ـ وكذلك التراث الإسلامي والمصادر الفقهية تحتوي على مبادئ سامية يمكنها أن تسلط الضوء في طريق إيجاد الحلول لمثل هذه المشاكل، وأن تصبح مصدر إلهام لكثير من التشريعات المعاصرة بما تحتوي عليه من الإنتاج الفكري القيم في هذا المجال. I have tried in this paper instead of doing lists the regular and detailed information on the subject of children's rights and assessments around, tried to draw attention to the starting point of this topic, namely, the concept of “Personal” And the interest scholars Muslims Btaeselh and the private assets scientists look of the Hanafi school applicants in the country beyond the river to the concept, and their considerable efforts in analyzing and eating their attempts to put him where terminology did not pay attention to their views in the studies on the subject.

It is natural that seem at first glance that the jurisprudence relating to the areas of legal / human rights provisions of the pro forma rigid unrelated to the basis of the problem; Because the goal of those provisions but it is a statement of substantive measures that will benefit in reducing problems to the lowest level, it also aims to highlight ways to reach . But we if we take into account the correlation law morality, especially feed Principles of rules of belief and moral, shows us clearly that solutions jurisprudential proposed to deal with the face of problems including relating to such subject ندوتنا, so that these proposed solutions successful and is connected to the positive results, . There is no doubt that the rearing and education of paramount importance should not be overlooked to achieve this goal.

[1]) Mustafa Ahmad Zarqa, Islamic jurisprudence in the new garment, d. M., D. T., Sixth Edition, 3/233-234.

[2]) (مادة onier, R., Small Vocabulary Roman Law, Paris 1942, p. 217-218 ("Person"

[3]) Jale Akipek - Turgut Akıntürk, Main provisions of the Turkish Civil Law Law of Persons, (مادة Capitan, H., Legal Vocabulary, Paris 1936, ("Person" نقلا من İstanbul, 2007, p229-230.

[4]) Surat norms 7/172, Al-Isra 17/13 , Al-Ahzab 33 / 72.

[5]) Abu Zeid الدبوسي, evaluate the evidence, Publisher: Khalil Mohiuddin Mees, Beirut 1421/2001, pp. 417 et seq; sun imams Sarkhasi, origins Sarkhasi, Publisher: Abu al-Wafa Afghanistan, Beirut, 1393/1973, 2/332 And Beyond; pride of Islam Abu Hassan Albzdoa, assets Albzdoa, Publisher: Mohammad Billah al-Baghdadi, Beirut 1417/1997, 4/393 And Beyond; Abdul Aziz al-Bukhari, Secrets Revealed, Publisher: Mohammad Billah al-Baghdadi, Beirut 1417/1997, 4/393 And Beyond.

[6]) See, for example: Mustafa Ahmad Zarqa, ibid, 3/235-287.

[7]) Assessed that al-Qaeda in Islamic jurisprudence, as well as in Western laws are personal to begin with the birth of the child is alive, does not require other conditions such as being born as a human being or safety of disability or life being able. In return, the French civil law requires (Article 725, 906) For the beginning of a personal born to be able to life, as the law requires the Spanish Civil (Article 30) أن يكون مولودا على هيئة إنسان إلى جانب اشتراط حياته لمدة 24 ساعة على الأقل.

[8]) Jale Akipek - Turgut Akıntürk, on. cit, p. 238-239.

[9]) Find الدبوسي the civil also have dealt with in terms of the performance side and obligatory, divided, but beginning in the study of the subject to the civil division “أهلية الأداء” And”Eligibility is obligatory” Very clear when Albzdoa and Sarkhasi.. Look: Abu Zeid الدبوسي, Ibid, pp. 417-423; Shams imams Sarkhasi, ibid, 2/332 ; The pride of Islam Abu Hassan Albzdoa, ibid, 4/393.

[10]) Look: Abu Zeid الدبوسي, Ibid, pp. 417-428; Shams imams Sarkhasi, ibid, 2/333, 340, 347 ; The pride of Islam Abu Hassan Albzdoa, ibid, 4/448.

[11]) We have responded when you also الدبوسي statements relating to the various civil mattresses, and clarification on the characteristics of behaviors that can be for a small privileged to do; but Albzdoa and Sarkhasi was speaking to clear in terms of performance to the civil division “Incomplete” And”Full”, As well as in terms of his actions on a regular basis according to the division of Tri-. Look: أبو زيد الدبوسي، المرجع السابق، ص420-430، 433؛ شمس الأئمة السرخسي، المرجع السابق، 2/332، 340-353؛ فخر الإسلام أبو الحسن البزدوي، المرجع السابق، 4/394، 411-433، 435، 448-451.

[12]) Nisa 4/6.

[13]). On the theory of eligibility in Islamic jurisprudence, see: Mustafa Ahmad Zarqa, ibid, 2/734-815; Sobhi Mahmassani, legitimate and legal principles in stone and expenses, inheritances, wills, Beirut, 2002, pp. 55-116; same author, the general theory of obligations and contracts in Islamic law, Beirut 1948, 2/100-163. See also the provisions of the Civil comparative jurisprudence Ibadi: Abdel Hakim Abdel Rahman Asaad al-Saadi, civil Omani Personal Status Law, Journal of Anbar University of Islamic Sciences, the first issue, 1430 /2009 , Pp. 59-91.

* ندوة تطور العلوم الفقهية فِي عمان “ الفقه الحضاري، فقه العمران”

Held during the period: (18-21) April 1431 / (3-6) April 2010:

Oman- The Ministry of Awqaf and Religious Affairs

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