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Jurisprudence between diligence and update

Jurisprudence between diligence and update *

Meets all the conditions legitimacy. D. Zine El Abidine al-Mohammed al-Nur([1])


The subject who was entrusted to speak it, a very important topic which is of topical urgency that require disclosure and statement of the fact of jurisprudence, and legitimacy, and the need for, and mattresses jurisprudence, and hardworking, and is there in our society today who has the ability in this position higher?

In the event of a vacant arena who is worthy to undertake this task, what is the solution and treatment for society's many problems barbed renewable over the days and ages? .

There is no doubt that these aspects require eligibility, and in preparation, then enough time for what is known that the sources talk about diligence antique sources are those that need Researcher to time, tan, auditing and investigation, and patience on the research and thinking.

This has told the association in this topic may not be enough time for his vision as well as the government, sought إعفائي from participating to time constraints, and because I work does not allow me to do this, and the fulfillment of the right. But with this virtuous brothers were wanted in the shares, even if just a little bit as this allows me the short time I answered their request may be that in the answer to their request Aoun me to facilitate this and to overcome Assaabh.

The shortened words in speech “Jurisprudence between diligence and update” An introduction, three sections.

فالمقدمة: The legality of diligence and work e Prophet and his companions, and after them, In sections diligence, and talk absolute ijtihad who was: إنَّ بابه قد أغلق على رأس المائة الرابعة من الهجرة.

والمبحث الأَوَّل: في أنواع الاجتهاد المقيّد، وحقيقة كل، وشرطه.

The second topic: في تحقق شروط هذا الاجتهاد المقيّد في هذا العصر، وعدم ذلك.

The third topic: What should be done about contemporary issues and modernize their diligence.

Submitted: The legality of diligence and divisions:

Almighty God has authorized to Nabih diligence he said: ) Verily We have sent down to you the Book in truth to judge between people including Arak God (([2]). He said some imams interpretation of the meaning of the verse in government permission diligence and opinion.

The painstakingly Prophet e in many such facts: Redemption of prisoners, and permission for jihad retarded.

And authorized to his companions in the diligence, and it أقرهم, as in Maaz story t when he sent him to Yemen.

He noted in conversations to work diligence: He said those who asked him about the breakfast fasting kiss, and asked him about the pilgrimage for the dead, he said, pointing to the measurement: «What do you think if Tamadamadt? .

And authorized to his companions in the diligence in the Proceedings of many; strive in his presence, and in their absence with him, and after his death. Then came Affiliates strive in many issues, and spread their diligence, and shot to, and continued it this to the fourth head per cent of immigration, close the door of ijtihad([3]), And denied the claims, either to تقاصر the determination eating causes, or fear that goes into the door, not his family, or as otherwise stated in the history of the legislation.

And hold the door closed to the present time, although it has been claimed some of the virtuous diligence, but did not deliver them so.

What diligence, which closed its door and indigestion get it?

Department purists diligence into two: Divorced, and restricted.

Valmtaleg: Is made Faqih situation in the collection of thought by virtue of legitimate([4]).

And he said this definition, it has to be hard-working to make all of his intellectual powers so that they feel the same deficit More.

What is meant by al-Faqih fulfilled the conditions diligence and prepares to do, not only earned him the doctrine, so that you do not have role.

We must be diligent in which provision Znaa, and they come out provisions Alqtaaat the no discretion, such as those the information need of fasting and prayer.

Terms of absolute ijtihad:

– Be industrious aware of Quranic verses that relate to the provisions, and number five hundred verse also said many of the fundamentalists.

– And be aware of interviews provisions, numbering about a thousand and two hundred modern, and some of them make more than this number.

– And he knows the complex issues, lest diligent contrary to the consensus.

– Then taught jurisprudence assets to ensure that the rules which reached to devise the provisions of sources.

– Some scientists stressed in these conditions Vastrt Remember all the Koran, and the condition of some of them in the industrious know Arabic so that it has Calcliqh, Kalimam Shatibi.

The bottom line: The absolute mujtahid is the one who has had the combination of these conditions, Fajtlalha or imbalance condition which prevents access to that level.

These provide the conditions to achieve the Queen has full authority and being able to extract the provisions of the evidence in the other sections and divisions jurisprudence.

It does not prevent from reaching this level industrious stops in some of the provisions and their lack of knowledge, the stipulated but rather is creating and willingness not get Jurisprudence of it, in fact, the same thing.

Proof of this: That some imams who are not otherwise in reaching this level discretionary been asked about many of the issues did not answer, but at a fraction of them, such as Imam Malik, for example,.

The scholars differed as those who provide has a willingness to derive rulings on certain issues, as matters of inheritance, or border issues only, Is diligent and justify his deduction enables him or he may not it?, And this is called fragmentation diligence.

Some scientists said prevented him from diligence in that part which had the has a queen diligence, and some of them passed.

Do you reach this level of diligence as possible to get?

Answer: It is possible, and evidence as possible request street diligence and commissioning, nor commissioned only Bmemkn) God does not burden a soul beyond its scope (([5]).

If what possible reason diligence damّ Door?

The reason for this lack of those conditions, the Ancestors these conditions available to them, and the atmosphere in favor, scientists who have taken their flag are available, and ensure the application of science and dedication to the verifier, and turning away from everything that is running on the request of the flag, with the simplicity of life in those times .

Only in this circumstances, they were able to machine endeavor, strive, and when Tqasrt determination, say scientists, and accept people on minimum Bclethm, and complicated life, and spoiled the world, and became the people's time expense in the collection Maklhm and inclinations, and their clothes, and their boats, and Mjamlathm as is now the case at all .

In order to close the door of ijtihad, and stressed bearing down on claims it also offers.

Do not think those who ruled they blocked the door of ijtihad good of the nation be brought on prevention of religious ritual prescribed by God for His slaves, but enjoined them sometimes, but there is a reason for this prohibition.

If diligence may close the door in those times with the good and Salah and sincerity, atmosphere fraught with science and scientists Vtbeefh in our fortiori.

وإذا كان الأمر هكذا، فلا ينبغي لأحد في عصرنا هذا أن ينادي بالاجتهاد، وفتح بابه، ونحن على ما نحن عليه من ضعف فكري وديني، وتشتت وتمزق، وإهمال الكثير من الواجبات، فإنَّ هذا ليس فتحا لباب الاجتهاد بل هو فتح لباب الفساد، والفوضى الدينية وطمس لمعالم الدين وتعاليمه، وإذا انتهى القول إلى عدم إمكان الاجتهاد المطلق لعدم التمكن من شروطه، وأسسه في هذا العصر، فهل يمكن للعلماء في هذا العصر أن يجتهدوا فيما يجد من وقائع اجتهادا مقيّدا غير مطلق؟

Before the speech on the possibility of diligence we must talk about the truth and its divisions, and its owner may fatwa and diligence build governance and what is not permissible, in the first section.

The first topic: In the restricted diligence:

Unrestricted mujtahid is not attained the rank of mujtahid made absolute conditions of limitations on that level; due to check that the conditions stipulated in the absolute.

He is on three mattresses:

Ranked first: Hardworking doctrine:

He said the perfect gallant bin in editing, and the son of Amir Haj in his commentary on it: «Fatwa industrious hard-working Takriga legal doctrine that was familiar with the provisions of the sockets industrious, worthy of consideration, able to branching rules, a master of combining teams, debate and defend the doctrine of the imam… ـ ثُمَّ قال ـ والحاصل أن يكون له ملكة الاقتدار على استنباط أحكام الفروع المتجددة، التي لا نقل فيها عن صاحب المذهب، من الأصول التي مهدها صاحب المذهب».

فحاصل معنى هذا المجتهد: PROOF that the world of the imam, and the rules used by the elicitation.

Second: As Ibn Subki: Has not attained the rank of hard-working doctrine, but self-Faqih, Hafez for doctrine, based his report, but he did not have Derbe and practicing for graduation and deduction, such as hard-working doctrine. They were Lifton and out.

Third place: As Ibn Subki also: Who is without a second, he is conductor some issues Allowadhat, Arif Bmchkladtha, but not strong enough to discharge and report evidence.

These mattresses industrious unrestricted; and the rule of these three: Should tradition of Imams and not independence devising provisions, they are scientists, not from commoners.

Do these three right fatwa?

The by hand Nsbhm the fatwa for people فأمرهم different in it, the owner of the first rank differed concerning it, the words of three:

First: He may Lefty on the doctrine of the imam an extract of the provisions of the provisions of the imam and rules, rules of the imam is the subject of consideration and diligence, are seen where and Lefty in the facts that have not provided for by the imam, based on those rules, so that makes the rules imam such as texts of the street when the industrious absolute. This was favored by most fundamentalists.

They quoted him unanimously: The followers of the imams who are in this position were Lifton people Takriga of the doctrines of the imams, with presence of people diligence of their imams, nor deny them their fatwas, while denying any imams are not attained the rank of these, such as those owners of Abu Hanifa, they were .

The second: It is not permissible for such a fatwa, a visual view of Abu Hussein of Mu'tazilis, said by some Hanbali, Shaafa'is.

The argument in this: Measuring the owner of this place on the colloquial, not to reach the rank of Mosque absolute diligence, and his commoner is not permissible Opinion فكذا this.

Responded saying this is that hard-working doctrine Del on his fatwa consensus passport made, and that measure with a difference, the hard-working early evidence doctrine imam world of its rules, is able to discharge and branching, all in Mentv of the right Commoner.

The second owner, a jurist in the doctrine capable of accountability report, but he did not have the ability to discharge the premier for not trained and practiced so; may prevent the public from fundamentalists fatwa.

And chose to leave to say بفتواه some tap, and ratios of many scientists. They quoted as evidence for that: As the carrier of a fatwa is a vector to talk, as may be transferred to talk to anyone who is at this level so are valid fatwa, for co-transport health.

This responded that out of the dispute, the mere transfer of the doctrine is no disagreement in his followers passport, but the difference in fatwa strive Baltkhrig the and branching.

The owner of this second payoff when Dad Hussein accidentally First, if not valid at Abu Hussein fatwa is higher than rank, Failure passport fatwa this fortiori.

The last place it seems from the words Subki agreement to prevent the owner of the Opinion; because it did not have to be nominated for an advisory opinion in the doctrine as the first, nor is it Hafez al-Faqih doctrine which, unable to accountability report as the second.

فخلاصة it: In unrestricted industrious that imitator required to follow the doctrine of the imam. It is a world of Muslim Scholars, not from the common folk. The fatwa passport For the hard-working doctrine chosen among scientists passport fatwa. As for the second Vmhml otherwise chosen response fatwa.

As for last resort Valmnicol for the some fundamentalists agreement on preventing him from Fatwa doctrine imam. The transfer of doctrine

Quoting a purely non-action is agreed upon, whatever the carrier of the first rank or other; mean: They agreed that it is permissible to work took him, and God knows.

The second topic: Are can be restricted diligence in this day and age?

فإذا لم يكن هناك مطمع في الارتفاع إلى رتبة الاجتهاد المطلق فهل من سبيل إلى الاجتهاد المقيّد في هذا العصر؟

Answer: أنّ الاجتهاد يتحقق بتحقق أسبابه، فلننظر أولا في أسبابه هل هي متحققة في هذا العصر؟

The progress that the selected hard-working doctrine may be his opinion, there is a saying that of the next in rank also may Lefty when some scientists.

Flanchter in the second it is permissible for him to unrestricted advisory doctrine, does it diligence Bertptih the: First and second available in this day and age?

Answer: إنه غير متوفر، فإنك إذا نظرت إلى مؤسسات العلوم الشرعية، وجامعاتها فماذا ترى؟

ترى عدم الاعتناء الكامل بمدّها بما يلزم لطلبتها وأساتذتها من وسائل الاستقرار في غالب تلك المؤسسات. Then look at those curricula and courses they are weak, does not entitle the student to scientific Queen that can be tantamount to ijtihad. Add to weak curriculum not fully prepared with those who provide to students.

What about those students and teachers of the great concerns, everyone is busy.

ثم محاربة التعليم الشرعي من الداخل والخارج، وقلة من يطلبه، والضغوط على المسلمين في هذه الأيام خاصة.

ثم عدم خلوص النية في طلب العلم الشرعي، فإن العلم اتخذ سببا ومهنة للتكسب.

These things combined do not doubt they prevent attain the rank diligence this is often, does not contradict that in some individuals of God اصطفاه, good case and reached an amount of science, can reach that rank?

Rule that out, and Seeing is believing.

If the fundamentalists have appeared to the people of this rank imam of the Two Holy Jouini and Ghazali and Alkdma Where the day of those scientists?

If we say: إن ما تقدّم من فقد أهلية الاجتهاد المطلق ـ فيه نوع من المبالغة ـ في أهل هذا العصر، وتقليل من جهدهم ومساهمتهم العلمية، وأن التوسط في الأمور يقتضي رفع مرتبتهم عن ذلك، فهم وإن لم يبلغوا مبلغ أولئك السابقين، لِما ذكر من أسباب، فإن فيهم من يمكنه أن يفتي ويخرّج الفروع، ويقيس على أقوال العلماء، فيمكن أن يكونوا من أهل المرتبة الثانية من رتب المجتهدين المقيّدين، ولا سيما وأن هناك مؤتمرات، وندوات تعقد من وقت لآخر، ومجامع فقهية في عدة بلدان من بلاد الإسلام، وقد عرضت فيها كثير من الوقائع والحوادث، وعولج فيها كثير من تلك الوقائع المعاصرة.

Say: I did not say بانتفاء describe these in this place to pieces, but ruled that, and the reason for exclusion is based, namely that ranked Central mattresses diligence unrestricted owner kept to the jurisprudence of the imam, he can report and explained, and pain in ways of graduation and branching, and weighting between novels Are these qualities unrealized

ثم على فرض تحقق الاجتهاد المقيّد، أو فرض عدم تحققه، فما الحل لتلكم المشاكل والقضايا التي تنتظر الحلول وبيان حكم الشرع فيها؟

هذا ما سنتحدث عنه في المبحث الآتي.

The third topic: What should be done about the facts emerging?

First: Talk about the topic title: “Jurisprudence between diligence and update”.

The jurisprudence is what we speak, for truth and its divisions, and what can and what can not, then may be his opinion it is not permissible to him.

But what you want to diligence and update?

Absolutely not intended to Advanced jurisprudence; because it can not be compared between the same thing.

If: What is it?

Who understood with the help of what is prevalent in society these days to talk about the facts of contemporary كنقل members, and dissect the dead, and the vaccination of women, and so on; should be the development of fatwas legitimacy of the new facts differ from those facts that have worked hard the المجتهدون former, based these opinions on the basis of .

This understanding of the meaning of diligence and update, if the meaning and understanding of one, and to be if each of modernity in the fatwas not in the foundation upon which is built fatwas, it is an old approach foundations previous.

It can be understood from diligence and modernity that they sense and also renew one means of diligence and innovation in a way that ensures the solution to the complex problems of contemporary society, away from the adherence to those laws that اختطها the former scholars of jurisprudence.

وبمعنى أوضح المراد هو التجديد في أصول الفقه كما يرى ذلك بعض الناس، وهذا الفهم ما لا أتوقع صدوره. وسبب ذلك أن مثل هذا النوع من الاجتهاد معلوم البطلان.

ما الذي يجب نحو القضايا المعاصرة؟

After the statement of the meaning of the title search, as understood say about this title: Scientists either مجتهدون a diligent restricted, or are not well (Any diligent), And this talk in case provides diligence.

I personally see that it is the duty of scientists before the path of diligence to look in the books of the former, many of the issues thought to be unprecedented in the books of fiqh rule; we find may be stipulated by the former scholars, as examples come.

ثم إن لم يجدوا للمسائل حكما واضحا أمكنهم أن يلجؤوا إلى التفريغ على قواعدهم الفقهية العامة، كالمشقة تجلب التيسير، والضرر يزال.

أو بقياس الوقائع الحديثة على نظائرها القديمة في كتب الفقه.

All of this may be to those who qualify for this issue, as unrestricted diligence and previous conditions.

It can take a fatwa from the books of fiqh composition of a committee of scientists consider the matter in the books of other sects, then I think she executes judgment for that incident, some of them took place in their community Vovetoa it, and some of them self-imposed moratorium imposed while in the case of imposing provisions; God was inspired by any of those earlier scholars; .

Examples include: Former scholars say: «Traveler's short prayer, even on the wing of a bird, and Kvetoahm in borrowing money if I value, or dealing champion. Kvetoahm and in the sale of air over the air to build it, and those who carry Kvetoahm bladders filled with wind in a prayer, and their fatwa in terminally ill patient of his life, Is it permissible to accelerate his death at rest, and so on.

Solution in the absence of hard-working?

ولو فرضنا عدم وجود مجتهد مقيّد ينظر في المسائل، فيفتي فيها تخريجا، فالواجب أن يرجع هؤلاء إلى الكتب لعلهم يجدون أحكاما جاهزة لا تحتاج إلى اجتهاد، بل تنقل كما هي، كما قلنا ذلك في حالة وجود الاجتهاد، فإنَّ الفقهاء اتفقوا على جواز النقل من غير اجتهاد، وبعدم وجود حكم في هذه الحالة فلا يسع الناس إلا التوقف عن الحكم في تلك المسائل، ويحتاطوا بالابتعاد عن الحكم فيها، أو يجوز لهم الإقدام على إباحة ذلك عند الضرورة فإنَّ الضرورات تبيح المحظورات، وقد قال الفقهاء إن مواطن الضرورة مستثنى من النصوص. The Koran is clear in this, he says: ) Forbidden to you dead meat, blood and pork… It was forced in Mkhmsh is Mtgianf to sin, Allah is Forgiving, Merciful (([6]).

فإن لم يجد حكما ولم يكن من أهل الضرورة فتحرم الفتوى في هذه الوقائع؛ لأنَّه قول على الله بغير علم. He says: ﴿قُلْ إِنَّمَا حَرَّمَ رَبِّيَ الفَوَاحِشَ مَا ظَهَرَ مِنْهَا وَمَا بَطَنَ وَالإِثْمَ وَالبَغْيَ بِغَيْرِ الْحَقِّ وَأَن تُشْرِكُوا بِاللَّهِ مَا لَمْ يُنَزِّلْ بِهِ سُلْطَاناً وَأَنْ تَقُولُوا عَلَى اللَّهِ مَا لا تَعْلَمُونَ ﴾([7]).

فإذا قال قائل: إن الشريعة لا يمكن أن تقف مكتوفة الأيدي حول هذه المسائل. He was told: That's right, the canon did not stop, but stopping people idly.

I have in mind in this sense some scientists Aelchenaqth the say in the answer to this word, he said something to the effect:

فإن تكن عدمت تلك المـنـقبة قلنا فما على السكوت معـتـبة

And then said those unlikely to stand for a fatwa, or deny it: Why did not provide a fool on the medical profession is aware of them, did not submit to the engineering profession, describes the first drug being second operations and planned roads and commends the buildings?

No nation prevented them from such a claim and made it a heinous crime, did not prevent them, anticipating their punishment? .

To sum up: That people in this case in front of two things:

1- Left to go in them are not aware of it, which is lighter damage.

2- Or go into the without knowledge Fadiloa it and deceive.

Models of the judgment which was not built on the basis of legitimacy:

Of the case it is based on the interest in the judgment of many of the issues that he spent where Shara prevention and prohibition, is to look at the consent of that interest for or opposition to the texts.

This principle is not novel in this day and age, but toffee-Hanbali said Shiite doctrine, in the eighth century AH, and was surrounded by many researchers under the banner of modernization and renewal.

The bottom line of this principle: أن المصلحة هي المقصودة للشارع من تشريع الأحكام “فحيثما وجدت فذلكم الشرع”، فإن وافقتها النصوص فبها، وإن عارضتها وكانت نصوصا ظنية فالمصلحة هي المقدمة على النصوص. ولذا يقولون: Where there is interest cable release God's law.

And known to the public Muslims: “Where found law of God Fetmt the interest”, Frawa on banking transactions Vojazoa loan interest, and commercial transactions through advances from banks benefit…

Examples include old: What fatwa by Al-Faqih al-Maliki Yahya Al-Andalus Laithi some princes when contact one Halaúlh in Ramadan, the fasting only atonement, is not permissible for the rest of his other qualities of Atonement, which is contrary to what this decision is legally in the year, which is given a choice between the three Almkfr: Fasting and feeding, and emancipation. Or arrangement by making the first trait emancipation then fasting Valataam the. This fatwa did not encounter one of the two views فلذا the scholars denied at every age.

Though some of the Maalikis sought for this opinion is that the way out Prince poor and has no money is money not Muslims can not feeding emancipation; Vtaan the right Lent.

Some of them said: The Yahya, an imam mujtahid doctrine understand that the text mohair or salary of expiation did not rush to like that which does not Enzger only fast, but in the right of Enzger any one of these, but that does not Enzger except fasting, these shall be subject him alone, especially since Atonement but proceeded .

It's that what was said of equality between men and women in inheritance, due to the interest of women.

They recall in flimsy things to build on this, the text frank hyperbolic make women's inheritance on half of the men for a reasonable things expose scholars to explain.

It's that: Bank loan to build a house for those who do not have a home. أو نحو ذلك بحجة عدم امتلاكه للمنـزل. The cite the need and necessity with that there was no need; because he could find homes in the villages, or in the desert does not need to cost forced to Astqradha the Bank of.

It is a matter of a patient who does not begged his life, you may be at rest death?

Popularized in this speech, with that scientists نصوا, or her former. Said Alrjraja, one of Maliki scientists in the tenth century: «وانظر على هذا الحيوان الذي لا يؤكل لحمه إذا بلغ به المرض إلى حد لا يرجى، واشتد به الألَم هل يذبح تسهيلا عليه وراحة من ألم الوجع أم لا؟

قال المؤلف ـ يعني الصرفي ـ في الشرح: “I saw prevention, only to be fueling to take his skin Kasba. And the whole people to prevent it in human and intensified pain. فيحتمل be to honor unlike other” اهـ([8]).

فالملاحظ من هذه الفتوى أنها مطابقة لما يسأل عنه مِمَّا يسمَّى بالموت الرحيم، أو الموت الدماغي.

والله أعلم بالصواب.


([1]) محاضر بمعهد العلوم الشرعية. Muscat.

([2]) Nisa: 105.

([3]) Say close the door diligence not Inad by the Ibadi and Zaidi over their history as already mentioned in one of the lectures, it has kept him open Aljh all of reach and once from the same force, until God inherits the earth and them. (References)

([4]) Look: Summary son eyebrow and حواشيه.

([5]) Sura: 286.

([6]) Surah: 3.

([7]) Fads: 33.

([8]) Look: Unveiled revision Shehab, vol 6, p 301.


*Evolution science symposium in Amman during the fifth century AH “Authoring polymath and comparative jurisprudence”

Set up by the Ministry of Awqaf and Religious Affairs in Muscat

25- 27 Muharram 1426 / 6- 8 March 2005

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