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Legal rules and their relationship to the jurisprudence of interests

Legal rules and their relationship to the jurisprudence of interests *

Meets all the conditions legitimacy. D. Nazih Hammad

Professor of Islamic studies in Canada, and a member of the Islamic Fiqh Academy in Jeddah.

 

This study consists of two parts and an extension.

Section I: What rules the legitimate interests

Sheikh said of Zarrouk Maliki rules: «What thing; truth, and truth is what is indicated by a total. The definition of that up, a whole, or draw, he explained, or the interpretation of which is completed for his statement and for the speed of understanding»([1]).

And al-Qaeda in the language: Basically, the pool: Rules, which are the foundations of the thing and its assets, physically was a thing - as home bases- Or morally - as bases of religion -; any foundations([2]).

In conventional terms it is also said Sharif Jerjani: «College issue applicable to all fractions»([3]).

Said al-Fayoumi: «Overall it is applicable to all fractions»([4]).

He said Taftazani: «It is entirely rule applies to fractions, to know its provisions it»([5]).

In the spotlight for Thanue: «It is in the terminology of scientists calling synonymous with original luster, and the law, and the officer, and destination. And defined as: Is entirely applicable to all fractions, known provisions of it»([6]).

This is the meaning of the rule in the conventions of science and the arts in general, as saying grammarians: Upped actor, effect Mansob, genitive entrained. And say fundamentalists: It is obligatory, and forbidding the prohibition. Such rules apply to all molecules; so that Lindh them not branch, and if there is abnormal it is beyond the scope of the rule; as abnormal or rare not rule him, does not invalidate the rule.

But for scholars idiomatically last in the concept of al-Qaeda and its significance; as are they applicable to many molecules, and not on all the particulars, and therefore known to the crown Subki saying: «It is the macro command that applies to many molecules, understand its provisions it»([7]).

Hamwi said in his commentary on the likes and isotopes: «The rule is when other scholars when grammarians and fundamentalists; scholars as it is when you multiply, not the rule entirely, applies to more fractions, to know its provisions it»([8]).

Based on the foregoing, some contemporary scholars said that the jurisprudential rule can be defined as one of the following two definitions:

أ- حكمٌ شرعيٌّ في قضية أغلبية، يُتعرّف منها أحكامُ ما دخل تحتها.

With- أصلٌ فقهيٌّ يتضمّن أحكاما تشريعية عامَّة في أبواب متعدّدة، في القضايا التي تدخل تحت موضوعه([9]).

On the other hand, is different from the concept of jurisprudence on doctrinal controls in forensic terminology in terms of the House of Commons and inclusiveness; since the field officer idiosyncratic narrower than it is for the base of jurisprudence, where the scope often do not exceed the per idiosyncratic Thread.

This has cautioned Ibn Najim likes and isotopes, he said: «The difference between the officer and al-Qaeda: That al-Qaeda branches gathered from various doors, and the officer collected from one door, this is the origin »([10]). And like it Suyooti said([11]) And other.

However, many of jurists applicants did not observe in their works, the difference between the two terms of the base and officer, فأطلقوا the name of the rule on the officer, and vice versa. And launched them on the collection of the provisions of one door or doors a different name for the rule, and sometimes “Colleges” Or “Assets”..., They did not completely characterized by the difference between them except in later times, as stated in the words of Ibn Najim Suyuti and Dad stay Ibn Subki and Banani([12]).

As well as the concept of jurisprudence different from the rules in forensic terminology fundamentalism; as the science of jurisprudence for jurisprudence; officer balance and the right to develop than others, and rules apply to all College fractions and themes. The jurisprudential rule is the issue of the majority or the majority, fractions, some matters of fiqh, and the theme is always an act charged, and sentenced to be most of the particles, and have Almsttnaat.

There are some rules you may find overlapping or ranging between sections of, as a result of a difference to look at the base, where it is seen in two ways, and that Lakeside excuses, and stakeholders, and custom.. If you looked at it as the theme of forensic evidence were fundamentalist base, and if you looked at it as being a really expensive doctrinal base was([13]).

This was explained by Ibn Subki importance of the rules of legal rulings saying: «Right on the student investigation, and eager to place the highest in the visualization and certification, that governs the rules of provisions, to turn to when the mystery, and promote burden diligence completed advancement ... The extraction forces and the effort in the exclusive Remember branches of undefined assets, systems and molecules without understanding ([14]).

The interest is the collection of interest, and the interest taken from the language righteousness, which is against corruption, said: In the interest of command, any good([15]).

The toffee: «As to its pronunciation is activated from righteousness, a fact that goes for the full body, according to what is intended that thing to him, كالقلم be on the whole good for writing it, and the sword on the whole arable hit him, either alone, according to the custom is the reason that leads to righteousness and benefit, such as trade leading to : Are the leading cause of unintentional street; worship or usually »([16]).

A “Healing Ghaleel,” Ghazali: «And interest in and to the parent is to bring benefit or payment harmful»([17]).

The word “Interest” On the tongues of jurists and causes the sense of pleasure, joy and causes, against corruptive which means pain and its causes, and causes grief. Said: “Both psychological and physical, worldly and otherworldly”([18]).

The owner “Almstcefy”: «We mean to maintain interest intentional Shara of creation, which is to preserve their religion and themselves and their minds and their descendants and money. Each includes keeping these assets is interest, and all I miss these assets is evil, and to pay interest »([19]).

The judge said Abu Bakr ibn al-'Arabi: «The interest is all meaning done by Sharia law, and received by the public interest in the creation»([20]).

The second section: Interests and controls division

Ibn al-Subki: «Shaykh al-Islam attributed the Izz al-Din ibn Abd al-Salam whole jurisprudence to consider the interests and ward off evil, though ضايقه the Straits of said: Total attributed to consider interests, ward off evil alia »([21]).

He said Quraafi: «God Almighty but sent the Apostles and peace be upon them to serve the interests of subjects pursuant extrapolation, everybody found interest; thought most likely they are required to proceeded»([22]).

The Department of purists and scholars interests multiple divisions and additions considerations different, either in terms of its strength in themselves are three sections: Necessities, needs, and Thasinaat.

As for the necessary interests: They are essential in the interests of the religion and the world, so that if you lose not been lower interests on straightening, but on corruption, Tharj and Foote life, and in the Hereafter Foote salvation and bliss, and refer Balkhsran the set([23]).

Said Tahar Ben Achour: «Essential interests are be collectively nation and Ahadha the need to collect, so that is not correct system بإخلالها, so that if Ankrmt a devolve the state of the nation to corruption and decay»([24]).

It is in the sentence due to keeping religion, soul, and mind, and birth control, and money.

The interests الحاجية: It is what it lacked in terms of expansion and raise the critical, if not observed; income people embarrassment and hardship; and because it does not reach the expected amount of corruption in Foote essential interests([25]).

The desirable interests: I knew it: «Taking as befits of pros habits, and avoid conditions Almdensat, which Tanfea minds Alrajhat the. And combines this section morals »([26]).

Said Tahar Ben Achour: «I have desirable interests are what Kamal was the case in its nation, to live safe, reassuring, and her delight in the sight of the rest of the community of Nations, so that the Islamic nation is desirable to integrate them, or get close to them, the pros habits input into it»([27]).

Good divided as the general usefulness and _khasos into two: In general, and in particular ([28]).

As for the public interest (Or college): They are all in it to bring benefit or pay back all the corruption of the nation, or a large group, or Qatar or so.

The private interest (Or partial): They are all in it to bring benefit or ward off evil back to a particular individual or individuals few. It was reported Izz ibn Abd al-Salam in the rules that take care of Shara public interests better and fuller than Aatnaúh special interests ([29]). And it came in the jurisprudence that «public interests precedence over private interests»([30]); Any when Tardahma, and «public interest Kaldharorh the special»; any in the legalization of taboos([31]).

It is divided as to achieve interests need to be brought or pay for corruption that afflicts them into three sections: Conclusive, presumptive, and fake.

فالمصلحة peremptory: Is shown by the evidence, such as text that is not likely interpretation, and combined extensive evidence upon which is based on extrapolation of the law, such as colleges necessary advanced, and the mind indicates that in collected doeth good, great, or get him a great Khader nation.

The presumptive interest: It required the mind thinks of them, or indicated by the evidence I suspect in Shara.

The phantom interest: They imagine where Salah and the best, a when Khader meditation; either to conceal harm it, or the fact that the righteousness overwhelmed by corruption([32]).

Further divided interests as well as to Shara her certificate account into three sections:

What Shara witnessed as: A measurement; measurement because the condition that no parent, which is the street where the eye or her sex interest.

And saw Shara not be considered: Any repeal, towards the prevention of grape cultivation, lest pressed wine.

Unless see him Shara as not cancel: He sent interest; any that there is no text testifies account for this type does not interest her gender, as there is no text witnessing her invalidity([33]).

Sent interest as Quraafi said: «Applicable in all schools when the investigation; because they measure and Iveron events, and asking a witness account, they are at branching account for بمطلق interest, nor are demanding themselves when branches and mosques by making the witness account, but rely on just the occasion, and that is the interest Sent»([34]).

It is worth noting in this regard that what is built from the legal rulings sent interests changed and change when you change those interests change the time or place, or persons. Ibn al-proof: «And not everything that was in the time of interest have an interest in another time, the reaction may be an interest in time, and evil in the other, but not equal times»([35]).

According to this change; the provisions brought change to the interests of the people, and to ward off the evils them, softening and lifting nothing wrong with them, even if those provisions remained as to Ankrmt their interests, and اعترى people discomfort and embarrassment, and mixed with the purposes of Sharia. Said الآمدي in Clinch: «Change and different interests requires change and different provisions»([36]). Ibn al-Qayyim: «God ordering the thing at the time knows that the interest in it, then finished him at the time that he did it corrupts, as your doctor instructs medication and diet at a time is the interest of the patient, and ينهاه him at the time that dealt with evil to him, and God first ([37]).

Extension: In a conflict of interest with evil

I've mentioned scholars and purists that Sharia loa and based on governance and interests of people in the pension and recycled, and that evil must never deny, at all times of all persons and objects([38]). And if conflicted with the interests corrupting feet Erjhama([39]). Said Quraafi: «Unanimously that the nation corrupting Almarjouhh of Mgtafrh with the paramount interest»([40]). Ibn Taymiyyah said: «Sharia secret that act if it evil to prevent, unless opposed by a preponderant interest, as in the legalization of the dead compelled ... pay greatest Alvesadin the possibility Adnahma»([41]). «Sharia loa on the collection of interests and supplemented, and evil and minimize the disabled, and piety weighting good benevolent بتفويت the Adnahma, push the evil of two evils, but got Adnahma»([42]).

A “Appointment” Toffee: «The pros and cons may conflict, you need to pay the officer canoeing oppose it, we say: كلّ حكم تفرضه، إما أن تتمحَّض مصلحتُه أو مفسدتُه، أو يجتمع فيه الأمران، فإن تمحَّضت مصلحتُه؛ فإن اتّحدت مصلحته بأن كان فيه مصلحة واحدةٌ حُصِّلت، وإن تعدّدت بأنْ كان فيه مصلحتان أو مصالحُ، فإن أمكن تحصيل جميعها حُصِّل، وإن لم يمكن حصِّل الممكن، فإن تعذَّر تحصيل ما زاد على المصلحة الواحدة، فإن تفاوتت المصالح في الاهتمام بها، حُصِّل الأهم منها، وإن تساوت في ذلك حُصِّلت واحدةٌ منها بالاختيار، إلاَّ أَنْ يقع ههنا تهمةٌ، فبالقرعة»([43]).


 

[1]) Mysticism rules for Zarrouk, p.3.

[2]) Vocabulary for Ragheb, p 679; media up to the rules of Islam to the judge Ayaz, p 1.

[3]) Tariffs Gerjani, p 171.

[4]) Waving on the illustration, 1/20.

[5]) Enlightening lamp, 2/616.

[6]) Scouts Arts convention, 5/1176.

[7]) Nazaa'im Subki, 1/11.

[8]) Gomez eyes Insights Hamwi, 1/22.

[9]) Look: Jurisprudence Dr Nadwi, pp. 39-40.

[10]) Likes and isotopes to Ibn al-Najim, p 192.

[11]) Likes and isotopes in the way for the resettlement, 1/7.

[12]) Look: Enlightening lamp Fiume, 2/616., Banani footnote to explain the majesty to collect local mosques, 2/290. Likes and isotopes to Ibn Subki, 1/11, likes and isotopes to Ibn Najim, pp. 192, likes and isotopes in the way, 1/7.

[13]) Jurisprudential rules Ndoye, pp. 58-62.

[14]) Nazaa'im Subki, 1/10.

[15]) Enlightening lamp, 1/408, vocabulary Ragheb, p 419.

[16]) Appointment to explain forty-Toffee, p 239.

[17]) Healing Ghaleel to Ghazali, p 159.

[18]) Major rules, Ezz Bin Abdulsalam, 1/10, 12.

[19]) Almstcefy, 1/286.

[20]) Qabas, Muwatta explanation, Ibn al-Arabi, 2/779.

[21]) Likes and isotopes, by Ibn Subki, 1/12.

[22]) Explain the revision chapters Aqrafa, p 446.

[23]) Approvals for Hataba, 2/8.

[24]) Purposes of Islamic law, Ben Achour, p 79.

[25]) Approvals, 2/10.

[26]) Approvals, 2/11.

[27]) Purposes of Islamic law, Ben Achour, p 82.

[28]) Healing Ghaleel to Ghazali, PO Box 210, the purposes of the Islamic Sharia, PO Box 78, 86.

[29]) Major rules Ezz Bin Abdulsalam, 2/158.

[30]) Approvals شاطبي, 2/350, 376.

[31]) Major rules, Ezz, 2/314.

[32]) The purposes of the law to Ben Achour, pp. 86, 87.

[33]) Explain the revision of the chapters, p 446.

[34]) Explain the revision of the chapters, p 448.

[35]) Access to assets, to the son of proof, 1/158, 175.

[36]) Clinch the assets of the provisions, 2/380.

[37]) Key to happiness house, the son of values, 2/416.

[38]) Explain the kindergarten Toffee, 3/379.

[39]) Expectancy Saadi, p 142.

[40]) Ammunition Aqrafa, 13/332.

[41]) Owner opinions Egyptian, Ibn Taymiyyah, p 338.

[42]) Fataawa Ibn Taymiyyah, 3/193.

[43]) Appointment to explain forty, Toffee, p 278.

 

* Jurisprudential evolution science symposium in Amman during the fourth century AH “Legal rules model”.

The Ministry of Awqaf and Religious Affairs _ Oman

This article contains Comment (1)

One Response “Legal rules and their relationship to the jurisprudence of interests”

  1. السلام عليكم ورحمة الله تعالى وبركاته:
    حفظك الله ياشيخ وجزاك الله عنا وعن الإسلام وأهله خيرا.
    أجبت فأفدت واجتهدت فأصبت، ونطلب من الله سبحانه وتعالى أن يحفظك ويرعاك ويممد لك في عمرك.
    And peace

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