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Doctrinal differences and functions in modern jurisprudence

Doctrinal difference

And functions in modern jurisprudence *

Preparation: Meets all the conditions legitimacy. D. Mohammed Saeed Ramadan Bouti



Praise be to God that His grace is righteous, and prayers and peace be upon the Prophet Muhammad illiterate Prophet, and his family and companions.

After: This research is divided - as it seems from the title- Into two two:

One: Doctrinal differences. And includes two issues: First: Statement legality of doctrinal differences, and the second: Curriculum statement which God wills a reason for this Differences.

Secondly,: Doctrinal differences jobs in this era. A variety and Safatt viewed noting the impact of these jobs in the achievement of the purposes of Islamic law.

* * *

First: The legality of doctrinal differences:

In people today look at the reality of doctrinal differences that loophole flaws in the structure of Islamic jurisprudence. And then indicate that it is not only a set of ideas to be human including Compatible tissue, and not alive house of God U. It was the German orientalist “Schacht” In front of it so decides, taking the doctrinal differences strongest evidence it.

But the fact that what should be borne in mind meditator liberal about priorities intellectual nervousness, is that the differences jurisprudence that emerged from the jurisprudence of the scientists who witnessed a history of Islamic law in depth know-how with the sincerity of religious commitment and devotion to God in intent, but is the fruit of approach, God willing, that ينضبط : Quran and Sunnah.

Thus, the end of the hardworking to the difference in some of the provisions of, spent the decision by the legislator Almighty does not choose to scholars in انتهائهم him, or in keeping their distance him. The wisdom of this decision the Lord that the multiple faces of provisions assigned to the evolving interests, as far as evolution from one time to another, but between one place and another also.

What is the approach that God wills the Almighty positive difference when devising jurisprudence of exporters Quran and Sunnah?

This approach is in multiple windows, notably the most comprehensive speech street slaves drafted a potential for a lot of texts, rather than address them formulate conclusive court. Which gives the attribute legitimacy to devise faceted potential of the text, and then apply legitimacy to those faces multiple important differed from each other, is not required for its legitimacy, but the health of probability in the balance of the Arabic language and the rules of interpretation of texts, and the availability of scientific capacity to know the probability closest and most consistent with the .

Moreover, the evidence available that the probability that guided him industrious in the understanding of the text with multiple possibilities, is the which خوطب the ruling by the industrious of the street before the Almighty, not because it opposes cassation possibilities paramount when hardworking, whether we doctrine Almsoben or errant; because .

Among the most prominent evidence of this interview agreed Messenger of Allah: «If Governor فاجتهد convicted hitting, he may troughs, and If فاجتهد convicted فأخطأ the reward one», said the opinion corrected Valajthadat a whole Almtkhalfah is the inalienable right to the knowledge of God, and to be followed of guided diligence him, but we said a mistaken opinion (This modern argument for them) The right decision in the knowledge of God among those interpretations and one. But sing him to follow what he thinks mujtahid is right in the science of God Almighty.

So doctrinal differences and function God raised the scholars of the slaves on them, take care of the interests of the people, and walk with their innate sophisticated, and not from the secretions of their inner thoughts. We have learned that one of the most prominent ways to those differences, address the potential slaves بصياغات the street for texts included provisions sophisticated vested interests.

To stand on some models that highlight this fact in those texts which required that interest be possible for more than one meaning, in the Quran or Sunnah.

God says: ﴿وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلاَدَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَن يُتِمَّ الرَّضَاعَةَ وَعلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ﴾.

This part of the verse (233 In Sura) Include a statement two judgments: One: The potential within the formulation of a rule of breastfeeding, and the second: The within the formulation conclusive court is possible, which is the rule of spending on wife.

The first rule: It is the contents of the words of God: ﴿وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلاَدَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَن يُتِمَّ الرَّضَاعَةَ﴾ إن هذه الجملة خبرية فيما هو واضح، وليست إنشائية. It is therefore intolerable to explain the apparent real sense, is that breastfeeding right for the mother, it is not permissible for the husband to choose suckled with their child, only after its advice and consent. Unbearable to be in shape to create news in the sense. The meaning permission: The parents feed their children.

إن المهم أن نعلم أن الشارع أراد أن يتوازع هذان الاحتمالان اجتهادات المجتهدين في فهم المعنى المراد من هذه الجملة، توخياً للمصلحة التي قد تختلف ما بين مجتمع وآخر، أو زمن وآخر، ولولا ذلك لجاء التعبير عن حكم الرضاع كالتعبير عن حكم الإنفاق على الزوجة، إذ لا يوجد – إن أسقطنا هذه الحكمة – موجب لاختلاف التعبير في جملتين متجاورتين يتضمنان حكمين يفترض أنهما من نوع واحد، بحيث تأتي الأولى إخباراً وتأتي الثاني إنشاءً.

The but came second sentence of conclusive significant contrast to the first; because the referee contained; which must be spent on spouse continued interest does not change with time does not differ between Idols and last.

Therefore scholars are unanimously agreed that it should be the expense of the wife to the husband at all times and in other cases, and differed in the rule of suckling the mother to her newborn; Aho obligatory in terms of is it right, or is permitted where it is right for her? : ﴿وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلاَدَهُنَّ…(Such as sum, it is likely to be news in the sense construction, so the meaning: Breastfeeding and duty, and is likely to be in the visible and news to be, so the meaning: Breastfeeding her right. Both possibilities are equally. But raises the whole sentence in this case, custom toddler in a society wife and her. The prayer is custom breastfeeding breastfeeding was obligatory for her, though not necessary custom made was breastfeeding as indicated by the verse really permissible her. This is what it Maalikis.

The Shaafi'is Hanafi and Hanbali that verse in the phenomenon being news, shall be taken the apparent meaning of what it indicates is that breastfeeding is the right of a wife, it is not permissible for the husband that brings nursing her newborn only with her consent([1]).

This difference in judgment but cause that had characterized the wording of this paragraph of the verse. We have learned that the source of this formulation but it is a divine revelation. The source of the difference in meaning, then, is a revelation and is not thought hardworking.

Maybe some of them said: The source of the difference in jurisprudence is not limited to text, drafted potential, but there are other sources him. Such as the role played by custom, and sent interests, closing arguments in sent the reasons for the difference.

But the fact is not, as some say those, but the right to text alone is the source of all that is agreed and what is different shop, either to be drafted, كالمثال that we mentioned, or refer it to everything from sub-sources. The value of the custom in the legitimate role to play but emerged from it to transmit the text, as well as measurement and the so-called interests sent filling excuses and the like.

If any of these sub-sources in Islamic law arbitrator; it is because the text, but texts from the Quran or Sunnah referred to him and is based upon the.

To recall, for example, highlights this fact.

God says: ﴿خُذِ الْعَفْوَ وَأْمُرْ بِالْعُرْفِ وَأَعْرِضْ عَنِ الْجَاهِلِينَ﴾ [Norms: 199], Says U: ) Let your nation who invite to goodness, and enjoin right conduct and forbid indecency ( [Imran: 104]. And custom known what it dating people in the country, the actual types of behavior or anecdotal terms. So followers prevailing custom or commonly known in the community is required explicitly Quranic text, unless it is contrary to the legitimate rule is indicated by the explicit text in the Book of Allah or in the Sunnah of the Messenger of Allah e.

Given that customs was and still is changed from one era to another, and vary between the community and another community, it is therefore the source of the difference in power which should be subordinate to him, but the legitimacy of the difference coming from the text, which calls for arbitration custom.

We say, for example, also: Requirement of the street to the health certificate in the judiciary that be fairer witness, any is deranged virility, and referred to the balance usually people in each country and the country. And make it is the court in virility and what controls Akhaddchha, after passing the basic principle is that a witness has not made a large, and should not be inherent in a small.

The condition of the street to catch Sales by the buyer to sell it, and make custom toddler is arbitrator with longer قبضا to the. Which as we know is changing between age and another, and differs between Idols and other.

And began documenting contracts with varying means of authentication norm, under authority extended times and different places.

The difference between the open and the street metaphor of the words of divorce in the judgment of divorce them, and usually leave people in Astalahathm are the Court.

And proceeded to defect option in Sales, and let people know is the arbitrator in its defect and set.

There is no doubt that these norms are all subject to change, and then the referee assigned to it followed the. The dispute may have reached many of them to bring contrast to the place of contrast.

Says Shaatibi in Muaqath: “And changing norms of what be Mtbdla in the habit of good to the ugly and vice versa. Such as head uncovered, it varies according to the Bekaa in fact, it is with ugly المروءات in the country's Eastern, ugly is in the country of Morocco. Legitimate governance varies depending on the. Shall be when the people Orient Qadha in justice, and when the people of Morocco is قادح”([2]).

What we are saying for the custom, is the one who should be said about the measurement and reclamation filling excuses and so on, it all a matter of discretion in devising the provisions thereof, and requires diligence dispute. However, the legitimacy of the dispute coming from texts cogens Ptgimha the the.

* * *


Secondly: The functions of these differences:

But now we wonder: What are the functions of the differences dictated by the text, for modern conditions and attitudes of scientists?

Re here to the memory of what is known of diligence when his family (After the need for insight into the rules of interpretation of texts) No more, no matter how diverse, be seeking to graduation the focus of governance, or revised, or achieved.

The graduation entrusted: He is working on extracting referee bug.

The revised: He is working on vowels purification from impurities that may be accompanied by Vetohm they are part of the illness, which is not as well, in order to drain the illness of those impurities that leaked it and hung out. And we do not like in this place with these Alajthadin.

The investigation entrusted: He is working to bring down the government and amongst the many events. An area on which functions doctrinal differences, should be played by people with scientists of modern jurisprudence.

The doctrinal differences did not arise - as explained - in a vacuum, and did not emit a mood of reasons, but originated from the difference in the focus of the provisions or text formats, which in its entirety takes its legitimacy - as we said - exporters of the Quran and Sunnah.

And function of the industrious day in front of an asset these differences, to select the most appropriate; to achieve the need of the times, Fasagth. And the appearance of diligence in this work is that the jurist is not entitled to pick from asset differences jurisprudential what he wants haphazardly or the desire of mood, or his factories to somebody, but you must follow the approach that achieves the wisdom of the existence of these contentious issues and the legitimacy of the dispute, namely, .

Summed up the approach to be followed as follows:

-The differences resulting from the change of norms and interests, and the development of open and closed pretexts, Must adopt is consistent with the custom toddler in that community, or that era, both in what was the cause of the dispute which alter custom. What must be adopted the undisciplined peace interest legitimate purposes restricted their adopted order, in what was the cause of the difference the reclamation. Must be adopted as required if pretexts open and closed, what is the duty or to what is a delegate or Muharram.

– The differences resulting from the possibilities contained the meaning to be text, due to the fact that the formula possible but not conclusive significance, it should be for hard-working to choose from words contained therein What is the most favored for the purposes of Islamic Sharia five, with discipline arranged, which is highly consensus of Muslim scholars in general, and with discipline degrees .

And I mean from this statement that there is disagreement in the interpretation of a text in the Quran or Sunnah, does not justify the hard-working turn a blind eye to these controls, which is a substance diligence and meaning, Lefty one of the opinions of contention in the interpretation of that text arbitrarily, or out of hue or personal interest controls .

The existence of multiple words in the question of what before the industrious insight, not only placed in front of the required options mission ijtihaad to select some of which is most consistent with the purposes of Islamic law, within the approved priorities and agreed.

Let us recall some practical examples of this:

1-The majority of scholars decided That commanding purchase commitment in the sale of a non-binding Murabaha him judicially. Any could have longer buying then refrain from fulfilling the promise. The Maalikis (Or their audience) To that commanding purchase commitment, binding him judicially.

The basis of the disagreement comes from considering the time that it involves all of the honesty and lying, Oataleghan the future, as concerning in time past and the case, or belonging past and the case?

Went public that honesty and lying Mnathma last time and the case, and the future do not relate to it; because the future is yet to come, do not come to judge the words of the future that truth or a lie, given that promise but for the future, do not apply to it the meaning of honesty and lying. Perhaps public opinion supported this as narrated by Abu Dawood from the Messenger of Allah e he said: «If one of you is the promise of his brother, and his intention to Levy, did it in nothing»([3]).

But Quraafi transfer in فروقه detailed in this matter, he said: “I know that the scholars differed in the promise must be fulfilled legitimately or not? ..”, Then Sahnoun was quoted as saying: “Which is required of promise as saying: Throw down Arc and I Osilvk what adopt it, or go out to the Hajj and I Osilvk, or buy a commodity or a married woman and I Osilvk; because you entered your promise in that (Ie in work Ogareth by), But just do not promise to be fulfilled, but its fulfillment of morals”, Then transfer for repaint words soon from this.

Then supported Quraafi this detail, he said: “And then we say: Face combining advanced evidence which requires some fulfilled and some not fulfilled, that if introduced (Any promising) The cause of his promise required (Any Khedm his home or buy a chattel) Necessary to fulfill it as the owner said, Ibn al-Qasim and Sahnoun .. He holds not otherwise necessary“([4]).

Say: Hence Maliki decided to buy promising in Murabaha binding contract implementation and several judicial; that such throw down the Arc and I Osilvk, or buy this and I heirlooms Osilvk.

What is required by the interests of care for the money - which is the fifth destination of the purposes of Islamic law- In light of the growing and spreading Islamic banks today, in light of this controversy over his statement at the end of breach of buying command in the Murabaha contract which committed him to promise the same?..

There is no doubt that the current interest by taking the words of Judge Maaliki in detail that they incline to its introduction, and the judge to compel the commanding purchase to fulfill what committed, and prosecute judicial this when النكول the.

It is often the Islamic bank is ordered to buy, and be the deal that is being contracted out and cover large heavy financial tired. The then merchant resort to economic institution high-capacity Iustha-to receive this deal through Murabaha contract, if reneged on his promise merchant and introduce the implementation of commitment signed by the institution in heavy financial loss may be too difficult to get rid of them.

فاقتضى destination fifth of the purposes of Islamic law taking hard Maalikis in obliging merchant judicial implementation of what he promised, with the consequent financial procedures and punitive sanctions.

2- Companies In terms of the types mentioned by many scholars and knew both of them. The dispute was signed between the health of most imams, and agreed on the health of some of them as a free rein, and what ramifications it as a decreasing. But what kind of preventing some of the imams only in the other imams said his health, adoption and passport introduced.

This means that the rest of those species and correct prize in a sentence. If the emerging interests require the introduction, it is further evidence of an emerging health. What I think we need to view these types and their respective definition, the statement sayings of the Imams.

However, the rest of those types of companies were characterized بالمحدودية, as it was the contracting partners are among the countless Mtarefan. Today, companies have found his speech, though most distinguishing feature of modern companies from the old companies that many of them today is based on the broad mass convergence between a large number of partners who hardly know one of them the other. We mean by joint-stock companies that have capital group shares put up for sale in an initial public offering in most cases, the shareholder shall not be group only بأسهمه, and does not assume responsibility only about. They are characterized for old two Bzahertyn companies:

The first: Inclusiveness, which often loses partner in the ability to recognize other partners.

Secondly,: The shares of these companies serves as the banknotes are being traded in the financial markets. And then constantly changed partners without the knowledge of others of them so.

The role of diligence speak in front of the old different companies in its provisions, to consider the possibility of measurement of joint stock companies and other firms modern, then subjecting them all as required by the economic interests of the provisions of the Islamic Sharia disciplined and purposes of the Almighty street.

I see that the companies contributing to these The deserted assets dealing taboo agreed to be inviolable, the foolishness of partners to one another, do not constitute a positive legitimate itself to invalidity. كما أن طرح أسهم هذه الشركات في أسواق التداول وإخضاعها لعمليات البيع والشراء، لا يشكل هو الآخر بحدّ ذاته سبباً لبطلانها، بشرط أن يكون هبوط وارتفاع قيمتها تابعين لهبوط وارتفاع قيمة السلع والبضائع والأجهزة التي تقوّم الأسهم بها، أي بشرط أن لا يكون ربح التداول بالأسهم نتيجة الخصم الربوي الذي تدور غالباً على محوره أسواق الأوراق المالية، أو نتيجة أنواع أخرى من التلاعب المعروف في هذه الأسواق اليوم.

And to say in the rest of the modern corporation, as solidarity, Limited Partnership, the company limited by shares, and the joint venture, and the company's dwindling, it should be كالقول the company's contribution, in all its forms, evidence that the origin of transactions permitted, unless it is proven evidence of prohibition, especially . Due to what we have said that there is one of those companies has deprived some imams, but in other imams said their health, if observed conditions of the times and the need to adopt economic, this is an emerging evidence on the validity, as we have already said.

3- It is noteworthy example here, Sample Sale. The healthiest what was said in the means to sell the commodity to another man a hundred to order, and arrested Item buyer, then returns seller Victrea it, for less than the price in cash.

Shaafi'is and virtual to his health and his passport, and agreed Hanbali and Hanafi and Maliki on his sanctity, and the basis for privacy while he went to those narrated by Imam Ahmad narrated from Abdullah ibn Umar that the Messenger of Allah e said: «If ضن people dinar and dirham, Tbaaawa the sample and follow the cow tails, and left the jihad for the sake of Allah revealed to be their scourge not bump them to reconsider their religion».

Mundhiri said: In attribution Isaac Ben acid Khorasani, not invoked. And it also means giving Khorasani the article, above-Haafiz Ibn Hajar; because it Aloamc which mudallis.

They may also quoted including narrated Daaraqutni from the high modern girl is more beneficial it has entered into with a woman on women's Aisha I asked her for sale sold from Zayd ibn Arqam such and such, as well as to tender. Then bought it for less than the cash. Said Aisha: “Evil is what I bought, and evil is what sold, Tell Zayd ibn Arqam that God has invalidated the struggle with the Messenger of Allah e unless he repents”.

As for the first conversation did not prove Imam Shafi'i what was said in the discharged of the foregoing, and the second this talk has mentioned Shafei in the mother and denied his health, and he does not prove like Aisha and the woman who recounted her anonymously, said like it Daaraqutni also.

Shafei said: “Aisha may be (If this was fixed it) Aapt by selling to tender; it indefinitely, and this is something that do not Ngizh, they Aapt them what bought him cash, has been sold to order” .. Then he said,: “I do not prove like Aisha, with that Zayd ibn Arqam only sells what he sees solver, يبتاع only like him. If a man sells something or is purchased by a taboo we see a solver see, God did not argue that frustrates done something”.

Moreover, Shafei discussed deprived or invalidate this sale arguments sound does not come revoked or underestimated([5]).

Perhaps the strongest quoted him Inhibitors he excuses to usurious transactions.

Role of talk diligence in this controversial issue, it should be going to the axis of the financial interests of contemporary, banking services should be subject to controls legitimacy. The required each of them to resort to this sale, in view of the Shafi'i and his companions, it is supported by the legitimacy of evidence not to downplay them, the argument invoked by the industrious Today, in addition to a directory of contemporary interest.

It is a wondrous makers “Legitimacy standards” To look at the sample sale to hold it on the sanctity Complex and void; because the smell of the Lord, without any gesture to diligence Shaafa'is and arguments Orduha the proof of the legitimacy and authenticity. This while أفتوا the permissibility of taking commissions and fees on credit cards without Ahmoa in it something of the smell of usury, and أفتوا passport possession of the seller or lessor (Arbun) If the dissolution of the buyer or lessee of the contract, without Ahmoa in the dispossession smell of money falsehood, Mstdelan the so what they thought evidence of them in the doctrine of the Hanbali([6]).

Taking may appropriate Saguetna to Male deposit this issue, should Nmahs say where.

*- Are Bond issue Of Alkhlaviat that could be employed in contemporary jurisprudence:

First: Discussed in this issue may require the seller to the buyer to pay a fraction of the price in the hands of the sales contract, that the contract is part of the price, and the dissolution of the buyer contract owned by the seller to the buyer is no longer the right of the. This is what we do not know Unlike in the void.

Secondly: What has nothing to do with this issue, in question, to donate buyer says in the hands of the sales contract: Take this amount is part of the price of the contract is part of, even نكلت or canceled is yours .. This is like when the borrower when you make it, take this increase, it is Tabat you by myself.. And according to the words guaranteed to sponsor in the transaction, has been honored onion money: Take this amount of penalty you for what you made me Aoun, has Tabat myself to you. We have learned that the requirement to pay the sponsorship contract is not permissible.

It is well known that both the seller and the lender and the guarantor taking this financial link, and that يتملكها a legitimate manner, do not know the difference never.

Some owners went to the health of modern jurisprudence first issue that we do not know Unlike in the invalidity, Mstdelan by the second issue that we do not know, unlike in health.

Said قائلهم,: Taking deposit own legal, and useful evidence for that bin Abdul Harith bought Omar bin Khattab Dara prison of Safwan bin illiteracy, the Nafie said to him,: The may buy, the same age, which is part of the price, otherwise he may – Any Safwan – Of such and such a price. Imam Ahmad and said owning passport, and like his son before him in that singer “Man buys something and gives AED seller, says: If I took it, otherwise Valdarham you”([7]).

Say: This guide, which is to replace the consensus on his health, has nothing to do Balmudallol, any defendant who is to replace a consensus on the sanctity. The buyer to the seller is committed - The critique part or all of the price - that يهبه of the tire and canceled the purchase contract, unless obliged to do so when the contract seller, and makes it a requirement at the heart of the contract.

* * *



Perhaps the best what I conclude this research. To mention what is known of the contentious issues that significant disagreement which is what was aware interpretations different where, subject to the rules of diligence, consistent with the rules of interpretation of texts, there is no doubt that the views stray from the logic of diligence and beyond the faces of the possibilities accepted, the meanings of the texts and ways . God bless the view:

وليس كُلّ خلاف جــاء معــتــبــــراً إِلاَّ خلاف له حظ مــن الـــنــظـــر

In today's people of captures of these views and stray anomalous approach diligence and controls may respond to the hue, or in line with the desire of self or personal interest, Fifty and Ahaknha of his ideas and his supporters, including may transmit the weakness to strength, health or invalidity. And crying to the moon.

I ask Allah to يمتعنا of jealousy on his religion and his devotion to his face, including certain than succumb to prejudice, and يبعدنا responding to our phantom that are not consistent with the purposes of the Almighty street. It hears prayer, and he is the protector of every Tawfiq.

(1) Look: Interpretation of the verse at the interpretation of the verse: ﴿وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلاَدَهُنَّ …(And the provisions Holy جصاص in his interpretation of the verse itself, and the interpretation of the provisions verses of Ibn al-'Arabi.

(2) Approvals: 2/283-284.

(3) See al-Mughni by Ibn Qudamah: 6/266 And Badaa'i the Trades: 6/123 And containing ماوردي the: 5/279

(4) Fourteenth difference after the bicentennial lying between the base and the base of the promise. From the book of the differences Aqrafa.

(5) Mother-to-Shafi: 3/116-249. Dar edition Koutaiba.

(6) See legitimacy to the standards of the Accounting and Auditing Organisation for Islamic Financial Institutions: P 24 / P 4/2 and 4/3 page: 121/P 2/5/6.

(7) This is the view of the Fiqh Council in Jeddah, in its resolution of a number 72 (3/8) Which is taken by (Legitimacy standards) As explained above.


* Evolution science symposium in Amman rationing and innovation in contemporary Islamic jurisprudence.

Held during the period: (28-2) April 1429 / ( 5-8) April 2008

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