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In the methodology of the initial ideas rationing

In systematic rationing initial ideas *

Preparation: A. D. Mohamed Kamal El Din Imam **

 

In the name of God the Merciful

( 1)

And importance of the idea of ​​rationing

Represented the idea of ​​rationing in the modern sense part of the demands of the pioneers of the modern Arab renaissance, he served and called for Tahtawi «Egyptian curricula kernels, and Khairuddin Tunisian« I tract, and Abdul Rahman Kawakibi mother of all villages. Also took the idea of ​​rationing - its components and objectives- A large area in the School professor Imam Mohammed Abdu, drawing features Imam in his famous report on the reform of Sharia courts in recent years of the nineteenth century, and is interested in disciples Tnzira and implementation, led by: Mohammed Mustafa Maraghi, Taha Habib, Ahmed Ibrahim, and Faraj Sanhoori; but that a number of school teachers French rights Bowl in Egypt encouraged them, and in the introduction of these: «Edward Lambert, who took over management of the school for several years.

The widespread interest بالتقنين our Almzkhor asset of jurisprudence emphasizes two things:

First: That Islamic Sharia law live suitable for application in all times and in all places, including involving the flexibility and vitality and viability of the development, the graduation of the provisions of the update on the life of the fixed assets Shara, and colleges, and purposes, this is a realistic jurisprudence mobile.

II: That Islamic law is the source of our legislative independence, which we consider necessary independence to preserve the identity of the nation and cultural peculiarities, not complete independence nation laws has been replaced imported timeless Bashriatha.

Will not escape Islamic Fiqh mind of its current crisis only survive three boats are: Full text's firm commitment (Hyperbolic), And increased use of discretion, and respect for conscious reality.

It seems that the word 'rationing' was ambiguous since its inception, differed Alkatbon in its content; and moved some men and Sharia law to return Barhasath to companions message to Abdullah bin Muqaffa, and good to try to circulate owner foothold as a binding judicial authority. And returned scholar Abu Zahra to the era of the Righteous Caliphs, and evidenced by the letter of the judiciary, which sent by Caliph Omar ibn al-Khattab to judge Ash'ari.

And my opinion that the codification likely in any doctrine in order to refer to him by the judge and the mufti and scholar even been included in the materials is not legalization; rationing is not just a catalog, numbering and abbreviation, he learned and formulate and commit.

He learned seen scholars to Islamic jurisprudence as a whole, or by doctrine prevalent geographically in a particular state, and in this race moves mind idiosyncratic in order to reach the most appropriate provisions to protect the interests Mahal care, mechanism choice depends on the strength of the evidence and preponderance of evidence, without ignoring the conditions . Here are amplified specialists to accommodate with men jurisprudence scholars trustworthy in the meeting, politics and economics; because discourse legislative moves in all of these areas, and are rated material jurisprudential all branches of law, which is also drafting; because Islamic law than - like every building legislative سديد- Protect a range of interests that underlie ordered society, governed by rules in motion Life. Each legislative text - whatever its source- Is in fact a speech to the wise involves two parts: Department calls the tune, which split power in the legislative base; construction caught and punished, the penalty is split in the same rule.

The speech which expresses the legislative organized society or order in society should be formulated in the form of words, read by the addressee or hear is understood what is meant by him and him with no loss or increase. The wording on this as art, has its rules and methods minute; legislation because the book is people's worldly in its moral, economic and political. And legislative discourse is texts Taatnahy, to control the facts that do not Taatnahy.

And drafting legislative text is the main tool to Hassan and misinterpreted, and hence to the possibility of activation and download.

Finally: The rationing oblige; because the legislative base its existence is not completed but the element of compulsion that makes compliance to rule not only by mutual consent, but calls imposed by litigation. The obligation here ascending and descending:

Rising; In the sense that it needed power to legislate two things:

First: Not change of cutters Shara, and not to come, including not authorized by God, there is no obedience to a creature in disobedience to the Creator.

II: Peremptory no conflict of interests and the necessary overall group; because the disposal of the Crown it is up to the interests of the parish.

And descending; Binding in the sense that the base for each target audience, regardless of the multiplicity of jurisprudence, and sectarian diversity Alantqaouat; choice of guardian raises controversy.

Valtguenin permission is the choice of legal rulings in transactions in a particular place and a particular time with classified in the branches, and numbered in the material, and issued by the competent authority of legislation adhered to by the judge invoked the litigant.

The production of a text in rationing based on Islamic reference does not move in the changing mental space, but it is restricted belief individually and collectively crucial provisions which are of two types:

First: Provisions permanent, source texts with peremptory constancy definitive evidence. The power to legislate about these provisions unrelated to hard-commands and prohibitions, not hard to respond and sanction, but its role absorbed formulation that does not change the rule, and classification that separates civil commercial for criminal etc.; but that the power of legislation often do not adhere to the essence of judgment, but . Not prevent definitive texts of the procedural side flexibility to accommodate the diversity of levels of litigation, and tightening controls and realistic ensure download abstract text on the specific incident when congruence, a careful effort begins as fact, and end بقيده in circle the appropriate text to descend judge rule. A process that should not be confused between certain judge who is necessarily relative terms, the definitive text which is permanent in nature absolute.

II: Discretionary provisions, and the essence of the possibility of change; whether choice of our heritage Almzkhor across the jurisprudence of the Muslim mind in different days through, or was diligent sentence exceeds choose to deduced from its sources. This process in our time - indeed, all ages- مزلة feet and made to understand and improve the collective endeavor, which in any case does not move outside the Islamic pattern hard, confiscated specified, and purposes of the college, and rules governing the mind-Faqih. Here improves signal to the difference that we see between the renewal that is in the systems and formats and will be attended by specialists from all aware of, and diligence, which is to do what you can and energy to reach a judgment I think practical. And diligence not only issued from his family even come down in his place, which is responsible jurist and guardian alone, and they duty Shura social; because of the community role in determining the interests and accurate description of the facts, which can not do without him Faqih, a devise, ConceptDraw guardian He chooses and necessary. And control them in this area double, controlled conscience made him eligible for guarding religion, and control a nation made him eligible for minimum policy.

* * *

( 2)

Date rationing in the Islamic world and its development

Rationing in the sense that we set nascent, reflects the new role of the state, and the absence of the authority of the judge industrious, and address the reality needs to get a reform movement in the area of ​​legislation to protect the nation from dangerous:

First: Risk of excluding the canon of the Islamic way of life to make a reality in a non-Muslim, and invoke people to canons Mstjelbh, and the laws of imported; separates the daily reality for texts Quran and Sunnah, and fills the human geography, which became vacant rules devote estrangement between the Muslim and his faith, and between the community and the same civilization; making it easier . This is already happening, so that the elites important obstacles rationing ever Islamic reference.

II: Risk uncontrollable reality under the weight applied to the initiated; for cohesion chaos provisions, and stamen personifying understanding forensic including preclude the proper application of the law, and make it subject to accusations of enemies and adversaries inertia and lack of development and إخلالها faculties of justice and fairness, and God calls to Justice and Charity, and Sharia justice whole and interest all. Valtguenin and Almstor the binding site service for the judge, and protects the rights litigant;, particularly the right to know the addressee by the government.

And avoid this danger achieve rationing including the promise of substantive and procedural provisions, including required by the judicial systems; begin to prepare an efficient judiciary, and choose an integrated system for the proceedings from the beginning of submitting them to the sentencing phase. These efforts do not bear fruit only through the tools for the implementation of the legal provisions do not make them in the practical application of ink on paper.

The rationing law is integrated knowledge structure accept Altbaad, are scientific effort by scientists, and political decision it issued Oulu, and voluntary response shown by all sections of society.

And my opinion that the provisions of justice magazine is the first attempt to develop group Legal integrated moving on both substantive and procedural, and derives directly from the law, and he composed a number of senior scholars of the Hanafi school; which makes 26 Shaaban 1293 E - the date of the magazine- A momentous event in the modern history of Islamic law. The magazine judicial judgments comprehensive range of legitimate transactions or more specifically Islamic civil law, but civil law is not integrated magazine accommodate the provisions of the Personal Status, which remained at a standstill until 1914 Date of issuance of the Ottoman Family Law.

The method followed in the development of provisions of the Judicial Code may be summarized as follows:

1- أنها في حقيقتها تقنين للمذهب الحنفي؛ لأنه المذهب الرسمي للدولة العثمانية.

2- The authors magazine رجحوا in some texts magazine of opinion which is consistent with current norms; eg: As stipulated in Article 207, which permits the sale ruled zero ripples of its members, any: The highlights at one time but something after all, and this weighting to say Muhammad ibn al-Hasan - and is not likely in the Hanafi- Who authorized this sale well received, and said: I make already existing and zero depending on him. As well as the opinion of Abu Yusuf in the provisions of the contract Istisna, taking interest and reverse the opinion of Abu Hanifa, a correct understanding of the doctrine of.

3- Merely head-Journal, which included rules and doctrinal fundamentalism, scientists did not try to develop a general theory magazine in commitments, which Tdarkih Tunisian Code of Obligations, which focused on developing a general theory of obligations. Some attribute this systematic progress in the art of legislative drafting to the impact of the mark «Santlana» and a number of French teachers.

And my opinion that the interest in Islamic jurisprudence in the branches, and focus on the development of partial solutions of the facts Unlimited abuzz fact does not mean that it does not invoke the assets, or that it offers practical solutions. Some may understand what error «Hamwi» «winked eyes Insights»: «Not a lesson including books if it violates the assets mentioned in the books branches;« Valhmoua »; here not talking about the fundamentals of jurisprudence, but rules. Because the rules in their entirety majority, which is based on extrapolation, which may not be complete, which may not take all the vocabulary. The phrase «Hamwi upright in our understanding without being – As some thought- Confiscation of assets for the benefit of partial branches; exact because the search idiosyncratic - even in the field of positive law- Not in the control section in the original, but in the graduation branches on assets. In this says «Lyon Mazu renowned French jurist: «Who are pinned down in the depths of legal research, whenever Ooglua in research and أمعنوا in extrapolation darkened them prospects, and branched out their tract, and found branches Nthira countless, they are attempting to reply to the origin and Acetknah causes Aksmunha to units homogeneous, and inflicting likes Bochaabahaa, proverbs similar things. After the effort and patience, and patience, not only can Oulu determination of the men, who arrive to authoring group may suit their parts, and firmed its units, and where he met Jalal truth, and the novelty detection, and the safety of architecture ». This is what scholars of Islam, but the words «Lyon Mazu» Tdmnin Secretary of the foregoing emphasized in the writings «Quraafi», and his words in «differences» almost identical to indicate approach used by Muslims waving construction idiosyncratic Acommq, which is without prejudice or sympathy greatest .

And judicial judgments magazine was an important event in the history of the legislation, what was then of Tgueninat, individual attempts tried to be taken as a model in the preparation of the law, such as: Attempts Qadri Pasha in a set of books of fiqh that put the correct understanding of the Hanafi school in a bowl materials arranged, in his three books prepared by the late nineteenth century, a: 'Guide Hieran', consists of 1045 Material, «and notaries and fairness in solving the problems of endowments, and consists of a 646 Material, and the book «legal provisions in personal status 647 Article, an attempt relied on the Hanafi school; but exceeded magazine judicial provisions in the drafting quality and coverage of topics.

In this context, reference may be made to try to judge Libyan Mohammad Mohammad Aamir in his book: «Summary rulings adopted by Maalik». «The Journal of legal rulings on the Hanbali school of Ahmed Abdullah continental Makki.

Indeed, echoes magazine judicial provisions resulted legitimate Tgueninat in non-Islamic countries or through the colonial authorities to some Islamic countries; eg: What was done by the Russian government 1909 When it passed a law for the Muslims of Russian Turkestan, including family law and inheritance provisions. In Algeria - and specifically Year 1898- Deployment of the French Orientalist «Sasunass» legalization civilians Islamic-style rationing French and according to the doctrine of the owner. As a 'Martino' set of texts taken from Khalil and manual annotations materials arranged in a systematic way and put it under the disposal of the committee was formed in 1905 To codify the provisions of Islamic law applied to Muslim citizens in Algeria. It is strange that the work of this committee in this rationing was limited to Sunni jurisprudence, Hanafi and Maliki, without regard to jurisprudence toes - and has its place on the map in real in Algeria - which is a matter of puzzlement and need further research to understand and reasoning. In 1907 Were put legalized Islamic courts of British West Africa.

I do not want further in the echo scientific this magazine, has led issuance and applied in many Arab provinces of the Ottoman state to move the muddy water in Islamic jurisprudence, and seek to renew its systems and institutions, and to reflect that in the judicial reforms, and in the movement of scientific; was centered annotations multiple . Suffice to note explanations Ali Haider, and Abdul Sattar Algarima, and Ahmed and Jawdat Pasha, and Khalid al-Atassi, Salim Rustam, and the age of my dream, Mounir judge, in addition to independent explanations to the rules of the magazine. Has been involved in teaching the magazine in Iraq, Lebanon, Syria, and Turkey, a number of senior men of the Renaissance, and professors legislation and jurisprudence, including: Imam Mohammed Abdu, who was a professor of the magazine in the School of Law of Beirut, and Mohammed magazine Said Mahasne Professor at the Institute of Law in Damascus, Ali Haider, professor in the School of Law Journal Balastana, Abdul Razzaq Sanhoori Professor magazine article in the Iraqi Law School at the beginning of the thirties. This scientific movement which was instrumental in guiding the political decision towards the adoption of the application of Islamic law, and had an impact in shaping an integrated map of the legal advancement, including the establishment of institutions and writing theses, and the rule of methods for comparative studies; and even the presence of Islamic law in the conferences of comparative law, and recognition of a legal system between contemporary legal families, ably stands in front of the Latin group and the Anglo-Saxon,ar.

In recent decades, the Islamic movement has been active rationing, especially after independence campaigners louder and Legislative work on the application of Islamic law, which is embodied in the constitutional provisions in many Arab and Islamic countries.

* * *

( 3)

In systematic rationing

Taken legalization movement - as some say right- Two in the preparation of draft laws Islamic:

1- The formulation of a particular doctrine jurisprudence, or the adoption of this doctrine mainly in the preparation of this regulation, taking with other when necessary. In this way goes magazine provisions Adliya, and efforts Qadri Pasha, and was released in Pakistan of Islamic legislation adopted Hanafi, a technique which followed the Islamic Research Academy in Egypt in attempting to collect the jurisprudence of the four imams in a systematic framework is divided into topics, and included in the articles of.

The disadvantage of this method is that it trapped under rationing may narrow sectarian movement including embarrassing reality, not in the interest; prompting the authority to introduce legislation by the other schools when necessary as the Ottoman state did in family law.

2- Formulation of Islamic jurisprudence as a whole;: Considered as an integrated unit Tfariv sectarian and Altejer between discretionary opinions, or work on the development of new, if necessary, without being restricted to a particular doctrine. This approach called for by the men of the Renaissance, and enables Imam Mohammed Abdu and his disciples adopted approach in every Egyptian jurisprudence attempts to codify Islamic law since No. 20 Year 1920 To Law No. 10 For the year 2004. This approach has gained priority and realistic in all efforts to codify Islamic law; because it exceeds nerve confessional, and raise the embarrassment when a narrow doctrine, and confer legitimacy on the jurisprudence of the Islamic sects as a river flowing plump him all the tributaries of the legislation as is the closest interest, taking into account cases circumstantial in every Islamic society.

Consideration should be given to this development as positive does not prevent the multiplicity of schools of Islamic jurisprudence but necessitated, confirmation of the importance of enriching the jurisprudence of life you branch transformation, the basis of which the diversity of the curriculum under one law, but the evolution prevents chest tightness in dealing with the views received from the doctrine of non-Faqih, and accompanied by openness to the doctrines with a view to understand and absorb the sources and read-board, which is the fairest ways to convergence on a doctrinal one culture, despite its richness and diversity,ar.

Perhaps the most important thing should be monitored in a systematic rationing and evolution of the scientific side, and the practical side, methods, and point out two things through the following:

The first command: And evolution of the scientific side:

After two centuries of attempts to codify Islamic law adopted mind idiosyncratic approach may be an acceptable year in most scientific forums, and this approach depends on the following methodological foundations for rationing:

1- Consideration to Islamic jurisprudence as an integrated unit not sectarian Tfariv, which calls to choose from all the schools of Islamic jurisprudence, and according to the vision does not stop at correct of a particular doctrine, but shootout between religious views through rules do not stop only when the weight of evidence.

2- Adoption of spin in the legislation, which means - as scholar Faraj Sanhoori, a instrument of this term at least in terms of pronunciation -: Choose guardian of various schools of Islamic jurisprudence regarded as a set of provisions to be a law and fatwas by between his subject, and take into account the spin following rules:

A- اختيار الرأي الأرجح دليلا، وعدم العدول عنه إلا لضرورة.

B- المصلحة المرسلة لها اعتبارها عند الاختيار باعتبارها من عناصر الترجيح.

A- التيسير ورفع الحرج من مقاصد الشريعة ومن قواعدها، والالتزام بها عند الاختيار التشريعي يعتبر ضرورة منهجية.

The spin moves in the legislation on the substantive side that obedience to the ruler is obligatory if order Bembah or forbade him, and obey his orders and prohibitions due unless not disobedience uncertain, and when it was motivated by the interest of the nation. Here we can wonder about the fate of the offending text of the peremptory provisions?!

It also moves spin procedural aspect on the authority of the guardian in the allocation of the judiciary, it is in the Sharia, which accept customization time and place, accidents and people, and can through this rule prevention of hearing some of the cases, but to organize special; because prevention full confiscation of the right of litigation, which is not . Here, too, can talk about the gradual application of rationing;: Applied in some other areas before.

And my opinion that Islamic law but the whole system does not accept Altbaad, but potential gradient in the application of laws after issuance is considered acceptable; because of the immediate application may overtax the ruling was exhausting community. And raise critical gradual application blocking the door to opponents of Sharia and predators out, but the gradient as application progress, should not compromise version integrated rationing legitimate; because Sharia is one and indivisible, and all Department of exchange impact, vulnerability to other circles in achieving goals, and safety application. فالتدرج لا يعني إلا تمهيد الأرض للعودة بالأمة إلى قانونها الأصل، فلا يفسر على أنه تعليق لجانب وأخذ بجانب آخر؛ لأن صلاحية الشريعة للتطبيق في كل المجالات هي جزء من الاعتقاد الذي يتساوى أمامه قانون الأسرة مع قانون الجزاء مع قانون المعاملات المدنية مع قانون المعاملات الدولية؛ فكل هذه الدوائر ترتبط بمنهج متكامل للحياة الإنسانية يكفل سلامة الروح والجسد وسلامة الفرد والجماعة، ويرعى مصالح الدنيا ويحقق مصالح الآخرة.

Valtdrj here - as has been said- No more than legalize illegal version to be applied in part after a specified period or the beginning of a given date.

The second thing: The practical side and methods:

Much debate in the House committees codification of Islamic law in the countries that lived under the weight of imported laws on working method for rationing, and it is worth mentioning here three methods:

The first method: Believes that only review existing texts; and what is OK to Islamic law remains, and what is contrary to Islamic law is being amended. And ends at this point.

The second method: Sees reconsider all existing legal system derived from Roman law, Anglo-Saxon, Germanic, and his heart upside down. This image is followed in the late nineteenth century in some countries in the Muslim world when imposing statutory law and the exclusion of Sharia.

The third method: I have used the committees formed to codify Islamic law in Egypt following the issuance of the permanent constitution in 1971, which states that the Islamic Sharia is the main source of legislation. This method is considered Islamic law the main source of legislation, and not taking any provision of the ordinances contrary to Islamic law and ruled out. It does not stop at this point, but fell all the laws, keep in line with the principles of Sharia, and introduce agreed with them, and keep consistent with it; taking several of the most important considerations: Legal heritage that has accumulated, we have to preserve it as long as it does not violate the law, with linked assets legitimacy and cut doctrinal rules relate to laws that came from, so that both integrated in the rationing rules interpretation, and reference to understand and edit. Do not go back to embedded foreign laws or judicial collections, but - when the interpretation- To Islamic law and rules.

Egyptian legislature has established laws projects that have not yet on the following principles:

Meets all the conditions legitimacy- Connecting rationing desired confiscated legitimacy of the Book of Allah and the Sunnah of His Messenger, or the consensus or opinion of the views of scholars Entries in the books of Islamic jurisprudence, to be back from the judge and jurist to those assets and authority of the Islamic, not to foreign laws when differing views in the interpretation and application.

With- Non-adherence to the doctrine of certain doctrines of Islamic jurisprudence, even if the Hanafi school, and that a departure from the narrow doctrine of one to the capacity of the law of Islam Bmmahbha different; since Islamic sects not only the views of the owners do not restrict others except in the directory on their health, and to achieve interest considered legally.

Jhlan عدون- That for materials that address modern issues that do not have legitimate origins not in violation of these assets, it will be placed according to the rule of interests sent which allows the guardian to develop appropriate systems to achieve the interests of the community.

D- Do not try to explore every detail and branches or text equivalents, college-sufficiency To impose flexibility, and enable to eliminate the doctrine of their role in the use of college, and downloaded on the well-maintained and in accordance with the rules laid down in Islamic jurisprudence.

After these pens capital in a very important topic, linked structure a number of cognitive science interfaces purely Islamic and humanitarian Actions. Can not be addressed to study the matter in depth, away from the broad vision sources of Sharia and Fiqh (Islamic jurisprudence) and achievements of the era, and the reality of Muslims.

Praise be to Allah, Lord of the Worlds …

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*Rationing and innovation in contemporary Islamic jurisprudence held during the period (28-2) April 1429 / ( 5-8) April 2008 – Lectures Hall Sultan Qaboos Mosque.

**Professor and Chairman, Department of Shariah, Faculty of Law, University of Alexandria Egyptian Republic

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