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Emergence of jurisprudence from a comparative perspective

Emergence of jurisprudence from a comparative perspective

Meets all the conditions legitimacy. D. Wahba Mustafa Zoheily.

كلية الشريعة _ جامعة دمشق.

Introduction:

Praise be to Allah, and peace and blessings on us Messenger Huda, and The God of the good and virtuous and his companions granite in Miami, and after:

The search in the history of the emergence of jurisprudence legitimate college or sub accurate, and fun, and very useful to refine and enrich the jurisprudence queens, and adjust the range of issues that fall under the jurisprudential officer or base College.

The the idiosyncratic narrower officer of the maxim, it is confined to one jurisprudential theme, combining branches door one jurisprudential.

Conventionally rule is: “College issue applicable to all fractions”, Or are: “Ogelba rule applies to most of the main points”, As stated in the “Abi stay colleges Akbari”, A book “Rules” Abu Abdullah Mohammed Mokri al-Maliki, and”Scouts conventions Arts” For Thanue, when the mark Saad Eddin Taftazani, in “Waving the clarification”, Jarjaani in book “Definitions”, And a footnote Hamwi “Gomez eyes Insights” On the likes of Ibn Najim isotopes, and”Refine the differences” And”Nazaa'im” For the resettlement.

The rules differ from jurisprudential theories, they are doctrinal principles and controls each of which contains a provision years or Ogelbaa in worship and transactions, The theories are objective in the jurisprudence system includes several jurisprudential doors, as sales and transactions provisions, or felonies and borders, or the provisions of the family.

The rules emerged at the beginning in the jurisprudence of the imams of various sects Sunni and Shiite, and in the explanations and evidence jurisprudence, both major sects or creeds which became extinct followers such as al-Tabari, al-Layth ibn Saad and others. However, the pupils followers doctrines major Ibadi approach Jabir bin Zaid, and Zaidi, front, and tap, Maliki, and Shafi'i and Hanbali, Sgulwa drafting of the rules and developed in the direction of a year or comparative, until it became a law, in the words of an intensive partial, and excelled in revenue extensive studies, :

– Sectarian character at the beginning of the emergence of rules.

– الاتجاه المقارن فيها، أو الجامع لمناهج المذاهب المختلفة.

– الأمثلة والتطبيقات.

– حصاد التقعيد في آفاقه العامة.

Sectarian character at the beginning of the emergence of rules

Islamic nation Prusidha the proud big and its rich wealth jurisprudence mine rare and comprehensive for all walks of private and public life, in worship, transactions, and criminal sanctions and domestic and foreign relations or international.

It was the beginning of Jurisprudence discretionary phenomenon at an early stage in the prophetic era, and the era of companions and followers, and on the tongues of hardworking in reasoning and deduction, and resulted in the fertility and prosperity of jurisprudence diligence. Especially in movement rules تقعيد, and put controls jurisprudential.

Has begun growing phenomenon of jurisprudence in the second century AH, and was المجتهدون in this century are trading a range of rules without customize their own workbooks.

This was the early growth on the tongues of scientists and clear-cut first in the field of endeavor at all sectarian imam of the imams, researcher finds models and clear examples of these rules in the jurisprudence of the predecessor without doctrine allocation without others; self-assertion and know the authenticity of diligence.

Examples of what came to San Hadi Yahya bin Al-Hussein, Nasser great Alotroch Abu Muhammad al-Hasan ibn Ali, and pro-God Ahmed bin Hussein: «On the other investigated time Vfrg and the rest is no longer, as it does not repeat but to investigate, and diligence does not invalidate parable»([1]).

The Code came in Grand Imam Malik: «Asked about Khra of birds and chicken that are not Bmakhlah to fall in the water pot, what say the owner? : Mala spoil the dress does not invalidate the water ».

And make Abu Hanifa depositary rest الغرماء, the quota and deposit holders, contrary to Ibn Abi Layla, said Abu Hanifa: «As well as all the money originally Secretariat»([2]).

Shafei said: «Redundancy followers of the statutes, does not have a rule only rule statutes»([3]).

The Imam Shafei is the author of the base: «Can not be attributed to Saket say, base: «Imam acted parish entrusted interest»([4]).

Suyuti said that Abu Taher Dabbas (D. about 430), Imam Hanafi beyond the river; Reply all view of Abu Hanifa to seventeen base, reportedly Qazi Hussain (ت462هـ) All doctrine Shafei to four bases([5]).

Shafie said that “Licenses do not impair disobedience”([6]). It traveled to sin does not avail himself of mushrooms and the combination does not wipe over the slippers for the traveler, the dead do not eat, do not fall out with him Friday, is not permissible for him to volunteer passengers and walking for non-Qibla.

These are examples that the beginning of the emergence of jurisprudence known imams doctrines, and were expressing their views and diligence rules.

Comparative trend in the drafting of the rules

Was the fourth century AH is the golden age of discretion, and تقعيد jurisprudence and formulation acceptable formulation when imams doctrines and their students and their followers, and start blogging was and Altqaid late third century AH In the fourth century.

Was Abu al-Hasan al-Karkhi (ت430هـ) Rules may take compiled by Abu Taher Dabbas, and added to it, reaching his thirty-seven base, but some is not a rule, but it is a guideline for the officer Hanafi scholars. It rules:

Basic principle is that it is proved indelible certainty of uncertainty([7]).

The basic principle is that things Muslims mounted payment and righteousness until the other([8]).

Originally it proves somewhat depending judgment, though it may invalidate intentionally([9]).

Then came Mohammed bin Harith bin Asad Khushani, (ت362هـ) In his book “Assets fatwas” He added some jurisprudential rules, including: “Trustees مصدقون on what is in their hands”([10]).

He then came Abu Zeid Obeid-Allah ibn age الدبوسي the Hanafi (ت430هـ) He put his book “Establishment of” That contains some important controls on a particular topic, and on some college rules with branching out([11]).

And Ibn Khalkan said to الدبوسي the first to put science scholars dispute, any comparative jurisprudence, God's mercy was the first of Me organized research in comparative jurisprudence between the sects, and make it a separate note, and coined the majority rules formulation compared. He was the first of the right branches of doctrinal issues originally branched off him.

He said Ibn Najim Egypt that Abu Sa'eed Heravi Shafi'i traveled to Abu Taher Dabbas was quoted as some of the rules and then followed by his companions([12]), Including the prestigious five rules Mothers of rules, and buildings of the legal provisions and discretionary text in different schools of thought, and not in the Shafi'i school only, who famously included by these rules. It is:

1- Things its purposes.

2- Damage remains.

3- Habit Court.

4- Uncertainty disappear, not the smallest doubt.

5- Hardship brings facilitation.

And improves a statement meaning every rule and clarified some examples.

The first rule: It is “Things its purposes”, Which is one of the fundamental rules in doctrine, فمعناها the: Be issued by the actions of human say or do legal provisions vary according to unintentional perpetrator.

– فالقتل إن كان عمدًا ففيه القصاص، وإن كان خطأ ففيه الدية.

– ومن قال لغيره “Take this dirhams” The nuclei donation was a gift, and only had a duty to fulfill loan.

– ولغو اليمين لا كفارة فيه، واليمين المنعقدة المؤكدة القائمة على قصد اليمين فيها الكفارة.

But this rule is of great importance in the doctrine, many of the provisions rotation legitimacy on them, and because the source of the modern right, directed by sheikhs at the age of t: «Actions are but by intentions, and each person will have but that which he intended».

The reason for its importance they decide a fundamental principle in law is faithfully work for God, and fidelity Guide sincerity of faith and certainty, for the verse: ﴿وَمَا أُمِرُوا إِلاَّ لِيَعْبُدُوا اللَّهَ مُخْلِصِينَ لَهُ الدِّينَ حُنَفَاء﴾([13]).

And the ramifications it an important base in the transactions is supported when the public scholars is Shaafa'is, the a: “Abra in the contracts for the purposes and meanings of words and not buildings”.

However The original Mraeih rule in many of the legal provisions, and with a basic format in comparative jurisprudence between the sects.

The second rule: It is “Damage remains”, It is a firm foundation in Islamic sects different, and its applications are many, especially in the field of guarantees or compensation for the damage, and the relationship between the neighbors, they had to raise the damage and restoration effects after falling in the field of special rights, as collateral Almtlvat, and to prevent damage or harm to a neighbor, and the legitimacy of many .

As well as in the field of public rights Kaltaadi the road building or other harm colors.

The reason for its importance being taken from the transcript of a fixed: «Do no harm»([14]). Damage and harm to others, and an interview damage, damage damage([15]).

According to prevent damage in many verses of the Quran, including the treatment of women in divorce, constipation, alimony, including the commandment.

The third rule: “Habit Court”, They decide one of the sources of legislation, which is the custom of both types of verbal and practical, and needed him in the distribution of rights and obligations in the dealings between people. This is the basis of the comparison and know diligence assets and transactions and litigation.

We find a lot of doctrinal issues in various doctrines based on this rule that alluded to the Quran verses, including:

﴿وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ﴾([16])، ﴿وَعَاشِرُوهُنَّ بِالْمَعْرُوفِ﴾([17])، ﴿خُذِ الْعَفْوَ وَأْمُرْ بِالْعُرْفِ وَأَعْرِضْ عَنِ الْجَاهِلِينَ﴾([18]).

It is intended convention: Custom correct, it is which Issadm not text or legitimately originally.

Qurtubi said: «Custom known and العارفة the: Each strand good ترتضيها minds and souls rest assured it »([19]).

Alosnue said Shafei: «What does not have an officer in Islam nor in language which is due to custom»([20]).

And its applications: Reliance on custom in alimony.

The ramifications of this rule comes:

– استعمال الناس حجّةٌ يجب العمل بها؛ أي في العرف اللفظي والعملي.

– الحقيقة تُترك بدلالة العادة.

– الكتاب كالخطاب.

– الإشارة المعهودة للأخرس كالبيان باللسان. They decide the foundations of verbal considered custom.

– المعروف عرفا كالمشروط شرطا؛ لبيان حجية العرف العملي.

– إنما تُعتبر العادة إذا اطَّرَدَتْ أو غَلَبَتْ.

– العبرة للغالب الشائع لا للنادر؛ لمعرفة بعض شروط اعتبار العرف وهي الاطّراد أو الغلبة، أي العرف العامّ.

– لا يُنكَرُ تَّغَيُّر الأحكام بتغيّر الأزمان؛ أي الأحكام المصلحية أو القياسية. It is a very important base frontiers and shows the evolution of the legal provisions that there is no legal provision where.

The fourth rule: “Uncertainty disappear, not the smallest doubt”: They decide originally legitimate whatever adopted the provisions of doctrinal many express how Samaha law and is pleased, and raise critical where all people, leaving doubts and whispers, relying on hard certainty any pieces, particularly in cases of purity, prayer and other acts of worship and transactions, sanctions and districts.

And the source of the Hadith narrated by Bukhari from Abbad bin Tamim from his uncle to leave pay attention to doubt the prayer: «No one goes out until you hear a sound or find a wind». Nawawi said when commenting on this hadeeth: «This is the origin of the origins of Islam, and a great rule of jurisprudence, namely, that things governed by staying on until he is certain assets otherwise, does not harm the emergency doubt it»([21]).

Examples include:

– ثبوت الدين على المدين حتى يثبت وفاؤه.

– ونفاذ الإبراء الثابت حتى يثبت ردّ المدين إياه.

– وبقاء العقد بين المتعاقدين حتى يثبت فسخه.

– وبقاء صفة الأمانة في عقود الأمانات كالإيداع والإعارة حتى يثبت التعدي أو التقصير.

And subdivided them:

– Main Disclaimers.

– الأصل بقاء ما كان على ما كان([22]).

– ما ثَبت بزمان يُحكم ببقائه ما لم يوجد دليل على خلافه.

– الأصل في الصفات أو الأمور العارضة العَدَمُ.

– الأصل إضافة الحادث إلى أقرب أوقاته.

– لا عبرة للدلالة في مقابلة التصريح.

– لا يُنسب لساكت قول، ولكن السكوت في معرض الحاجة إلى البيان بيان.

– لا عبرة للتوهّم.

– لا حجّةَ مع الاحتمال الناشئ عن دليل.

– لا عبرة بالظن البيِّن خطؤه.

– الممتنِع عادةً كالممتنِع حقيقة.

All of these rules have invoked to applications in the field of comparative jurisprudence, and weighting of the rule on the other, and in this great benefit, and the resolution of the door to the dispute.

The fifth rule: And last of the basic rules, they are “Bring hardship facilitation”.

This rule reflects the most important characteristics of Islamic legislation, which lifted the embarrassment of legitimate costs, a key out of the assets of Al-Shara ', whether in doctrine or in assets. Said Shaatibi God's mercy: «The critical evidence to raise in this nation was cutting the amount»([23]); Any certainty.

And to be: That excessive hardship or unusual be the cause of mitigation and facilitation and tolerance; because in those hardship Aanata or embarrassment to the taxpayers.

And the source of the Quran and Sunnah:

It is the Koran verse: ) God intends for you ease and does not want hardship for you (([24])، ﴿وَمَا جَعَلَ عَلَيْكُمْ فِي الدِّينِ مِنْ حَرَجٍ﴾([25]),) God does not burden a soul beyond its scope (([26]),) Fear Allah as much as you can (([27]),) God wants to relieve you, and man was created weak (([28]).

It is conversations saying e: «The religion is easy, and will not hailed a debt only drop ..»([29]).

And saying: «Facilitated nor تعسروا, and preached no تنفروا '([30]).

Examples include applications: The legality of the licenses, Kaltimm, and wipe over the socks, and the palace, and the combination, and fasting in Ramadan to travel, illness, aging, pregnancy and lactation, and drop the Friday prayers and the community about the patient and traveler.

And raise the culpability because of the error and coercion felonies and the like.

In civil rights or transactions make Mistake مبطلا of the contract sometimes, and robbed زومه other times, an error and mistake.

The fact that sometimes ignorance prevents accountability like someone newly safest, and the continuation of the agency if ignorance isolating the principal agent, and accept a certificate optimal optimized in the event of lack of justice witnesses.

And the introduction of convention in many cases strictly rhythm in embarrassment.

The ramifications of this rule comes:

– الأمر إذا ضاق اتّسع.

– As well as: If the Fed expanded.

– قواعد الضرورة والحاجة الآتي بيانها.

These five rules indicate their contribution to boot an agreement jurists often, though they differed in some applications, such as contributing to the comparisons and interviews.

There are rules are also important legitimacy had to compare, including the rules of necessity and the need for rules, and security rules, and the rules and language assets, and the types of differences in doctrine and control Interview.

Necessary and the need for rules:

Suffice here lists the rules for clarity and reputation for work in the field of comparative jurisprudence, or religious jurisprudence, which is what comes:

1. A virtue of necessity:

And Mstndha five verses from the Koran, such as the verse: ﴿وَقَدْ فَصَّلَ لَكُمْ مَا حَرَّمَ عَلَيْكُمْ إِلاَّ مَا اضْطُرِرْتُمْ إِلَيْه﴾([31]).

Each is forbidden in Islam but blasphemy, murder, adultery([32]) يستباح do when having, provided they do not come down status permissible and Altbstat, deals with it by paying without increasing harm it.

Shaykh al-Islam Izz ibn Abd al-Salam: «Necessities suitable for the legalization of taboos brought to their interests, as appropriate criminal sanctions positive ward to Mvassadha»([33]).

2. Necessary exaggerated estimates:

Meaning that everything is permissible for the need of the act or leave for he is permitted to the extent that pays damage and harm, without otherwise, the meaning of permissibility: Raise the culpability does not guarantee, and its manual says: ) Is forced by non-Karabakh and there is no sin on him returned (([34]).

3. What excuse champion Jazz been removed:

Is the meaning of the former base and complementary to, showing what needs to be done after the removal, if necessary, and is intended to: That may have to do because of the excuse of excuses, or opposed the emergency of the symptoms; the legitimacy disappear demise if the excuse. And in the worship space, contracts and eliminate.

4. Affordable not fall Palmasor the:

Is the sense of “Necessary exaggerated estimates”, But it works out in the scope of Almamoroat. Ibn al-Subki: «Months, one of the rules derived from the saying e« and commanded him they brought him as much as you can »»([35]).

And its meaning: Be enjoined if it is not possible to do fully ordered by Shara inability him, but it can be done in part; must do some affordable it, and leaves leaving total cleaves do.

  1. Having not invalidate the right of others:

Meaning: That having, albeit a reason for excluding criminal responsibility, with the survival of the act forbidden Kaltlfez disbelief when Aladtarara or coercion, it does not fall right of another human being in material terms, any compensation for the money, though it falls right of God, and raise the sin and culpability for the destitute or .

  1. General need down the necessary status:

In addition, at the origin of the base: “Or private” To include what you need a class or group of people, as parents of a city or a particular craft owners.

And the meaning of the fact that the need for general: That all people in need, in general prejudice the interests of agriculture, industry and trade fair policy and good governance.

The more a cause of necessity needed, فيترتب on violating falling into perdition.

And the consequent need violating falling in embarrassment or hardship.

Many examples such as the need to contracts such as peace and istisna special prize and speculation.

Security rules: (Compensation for damage):

There are many rules for inclusion, returning them to adjust the various provisions of the security issues, the facts of infringements and mistakes, and resolve disputes and conflicts and disputes among the people. Including:

  1. Direct guarantor if not exceeded: Guarantees the funds due to direct damage, even unintentionally,.
  2. If you met and caused direct rule is added to direct; any direct guarantees; that bug damage.
  3. Does not guarantee offending only بالتعمد; any, but to do the view damage.
  4. In addition to the actor does not act commanding unless forced; infringer because the actor is in fact.
  5. No one may be acting in the King of others without his permission; any no mandate and no need.
  6. Passport contrary to the legitimate security; does not guarantee compensation if the act projects.
  7. Abscess security; pays any sheep.
  8. Remuneration and security do not mix: This special rule doctrine Tap.
  9. Guarantor has the money secured from the time of taking possession of security: It is also the origin and tap the application.
  10. What can not guard him not guarantee it; any because of the necessities.
  11. On hand to take even play: This rule is the text of the Hadith narrated by Ahmad and Sunan ruling, a good talk.
  12. If the parent can not so they can be to the allowance; any If you can not refund money eye because of damage, they must be Re-Awad him.
  13. Does not ensure that the amounts in conservation: Scope within the scope of contractual liability in contracts secretariats Kalaidaa and Agency.
  14. Accept the words of the Secretary in the same patent, not to commit the warranty on others; any Accepts the Secretary Kalodaa statement with doom coincidence if the depositor claims upon it أتلفها; because Amin in conservation, and the Secretary-certified under oath.
  15. Felony Ajme a mighty; any felony animal itself or eliminating waste, unless Akora, and hyper-owner saved where it should be conservation, a circumstance night, and gathering places in the markets, the lack of awareness, which is the basis of responsibility.

These models of jurisprudence college or subsidiary having crystallized drafted in the fourth century AH, Istdhae in linking branches provisions of the process, and invoked in the debate jurisprudence in the field of comparative studies, and the resolution of differences of opinion, as long as they indicate the unit assigned, and drew the link between .

Shall be harvested Altqaid in every time and place reasonably good harvest and inclusive of the communities of branches jurisprudence in terms concise, and it helps to consolidate the jurisprudence and its applications and see how payment to it, not least the importance of jurisprudence in devising the legal provisions, and fold in the rules of grammar, language, logic, etc. .


[1]) Sea Alzachar, 1/123.

[2]) Differing Abu Hanifa and Ibn Abi Layla, pp. 61-62, meet in Egypt Press.

[3]) Mother, 1/4, First Edition, Library colleges Azhar in Egypt.

[4]) Likes and isotopes, for the resettlement, PO Box 142, 121.

[5]) Ibid, p 7.

[6]) Wallflowers rules for Zrkachi, 2/167.

[7]) Karkhi assets, PO Box 110, Imam Press in Egypt.

[8]) Karkhi assets, p 111.

[9]) Ibid, p 114.

[10]) Colleges son of Ghazi, 1/181, 182.

[11]) Entrance idiosyncratic General Sheikh Mustafa blue, 2/941, P 564.

[12]) Likes and isotopes to Ibn Najim, a footnote Hamwi it, 1/16 Onwards, likes and isotopes for the resettlement, 1/17.

[13]) Evidence, Aya 5.

[14]) Hassan narrated by Maalik in al-Muwatta, Ibn Majah and Daaraqutni in Sunan, ruler, and said: This talk is true attribution to the conditions of Muslim, not يخرجاه. Golden concurred on it.

[15]) Look: End in a strange talking to the son of the ether, the daad with Alra door, 3/81.

[16]) Cow, verse 228.

[17]) Women, Aya 19.

[18]) Norms, Aya 199.

[19]) Interpretation of the verse, 7/346.

[20]) Boot in graduation branches on assets, for Osnue, p 224.

[21]) Nuclear explain Sahih Muslim, 4/49 And Beyond.

[22]) This report source Alastsahab which is one of the disputed evidence, and considered as one of the sources of jurisprudence.

[23]) Approvals, 1/231.

[24]) Cow, verse 185.

[25]) Hajj, verse 78.

[26]) Cow, verse 286.

[27]) Gain, Aya 16.

[28]) Women, Aya 28.

[29]) Narrated by Bukhari from Abu Hurayrah t.

[30]) Narrated by Bukhari from Anas t.

[31]) An'am, verse 119.

[32]) But licensee in coercion disbelief only without the other in the most correct.

[33]) Rules provisions, 2/3.

[34]) Cow, verse 173.

[35]) Narrated by Bukhari and Muslim from Abu Hurayrah t, and early modern: «What نهيتكم for فاجتنبوه ...».

This article contains Comments (2)

2 Comments “Emergence of jurisprudence from a comparative perspective”

  1. D. Hussein says:

    Hello
    Bhajhaly contemporary writings within a specialist in jurisprudence and Islamic jurisprudence, and all opinions about this value, with appreciation.

  2. D. Hussein says:

    Article embraced the objective contemporary, outstanding Broalfdalbges of the scientific .. Thanks.

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