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Faqih and contemporary times

Faqih and contemporary times *

Preparation: Meets all the conditions legitimacy. Moataz Al-Khatib **

Writer and researcher from Syria


This research is based on the assumption President expressed: That's what I call”Jurisprudence kinetic” Who grew up in the thirties of the twentieth century have adopted Mcoltin centralized: Renewal idiosyncratic, and legalization of Sharia. This took place against the backdrop of the argument “Universality of Islam”, The central argument of the Islamic movement, which embraced the argument “Islamic State” Which are summarized in “Sharia law”.

The argument “Islam is a comprehensive system” Means: “Crystallization” Islam as “Solution” Equivalent in terms of drafting and inclusive solutions “Western” Raised at the time, and even outdone not on the one hand and comprehensive nature of the legislation, but from the point of being a “Divine legislation” Houses, hand it stems from “Islamic identity” Itself, and up the present to the past, and authenticity with contemporary life, the arguments that prevailed Islamic discourse at the time, and revolves around the great intellectual battles.

Exceeded motor idiosyncratic thinking to think idiosyncratic classic([1]) Prevailing in the religious establishment at the time (Including the faculties of Sharia), Thor thinking idiosyncratic, and produced a significant doctrinal heritage and new also not familiar classical jurisprudence did not operate school concerns Faqih, who was locked into the old heritage hardly Ijaozh the only in a very narrow range may not exceed the level of the wording and arrangement sometimes.

In this overflow lies many criticisms of this new jurisprudence, whether Salafist or secular criticism; the real opponent of the Islamic movement, or the classical criticism of the protection of the inherited, such criticism criticism of the idea of ​​jurisprudence of minorities, the idea of ​​democracy, freedoms, citizenship, and codification of the law and even diligence Jurisprudence itself, and the purposes of the law, and other statements that did not impose some of itself itself after decades of time, with a passion for restrictions and controls on the part of the classical jurist,ar.


First: Jurisprudence from the center to the margin

At the theoretical level can say that the philosophical doctrine which organized all acts of Muslims holders located in the Science Center and the Muslim community life([2])، “Life in the doctrine is not limited to matters of worship alone, Valvgah Islamic annexation branches of life and the civil and political rights and sanctions, nor escape chapter of the jurisprudence that enters under the base built on the basis of religion, and all matters relating to life, personal or public within the religious duties, and by this ”([3]).

The main tasks of jurisprudence in three: First: Application in the courts and the judiciary. The second: That believers standard in their actions, and their return permanent in their daily lives through the mufti or man of science. And third: As a source of legitimacy for the community and the state so that lends legitimacy to the private and public projects. Has served as “The theory underlying the legal system”, Puts mainly based upon certain individuals from the Muslims, and sometimes even non-Muslims, that many of the problems faced by the community or future Sijahaa can to find a solution by reference to the jurisprudence through sources that are talked about legislative science of jurisprudence([4]).

And this, Valvgah is he performed the role of the legislature and not the state ([5]), And the authority of scholars were to apply to the State; is the source of legitimacy for individuals, society and power, and that the legislative process was separated from power, Legislation exists in Manzala sources: Quran and Sunnah, and scientists eligible to interpretation and expansion, and Islam Muslim is not valid unless the compliance of the law which the behavior to make it consistent with the religious teachings.

There were several roles in Islamic history interfere in the process of this legislation, and correct individual and societal behavior, is the: Faqih workbook and the Mufti and the judge. And”Rarely found these roles in isolation from each, Vafiqih may combine two or three innings and perhaps combine them all”([6]), But “Not engage in the judiciary is a necessity of life fully successful professional jurisprudence; because a number of senior jurists never engage in it,… The judge where he is a judge had little role if he has any role in the doctrinal change after a configuration [Sectarian] By virtue of the nature of his job and limits imposed”([7]). Indeed, the judge regularly seeks advice jurisprudence of the Mufti([8]) , Who enjoyed a central role in the courts, and the judge's ruling “Does not have the importance of legitimacy beyond the immediate concerns and future Mottagadian. The review and evaluation inter legislation تتمظهر by the where practice فليست of the functions of the judge, it is the prerogative of the Mufti and Faqih workbook probably to a greater extent. If the judge deliberately to calendar lawsuits importance to the practice of jurisprudence, it does not do so as a judge, but a mufti or jurist is classified or a combination of both”. Perhaps this is what justifies the lack of attention to note the historic districts (Excluding the districts of the Prophet e Caliphs) Unlike the fatwas that contributed doctrinal change in the process according to the social practice; hence suggested some innovators([9]) To be one of the sources of jurisprudence districts and interference in the body of jurisprudence.

Vafiqih is the standard that produces knowledge in the community and lays the power that was in reference “Tradition” Idiosyncratic, but the judge was a specialized legal practice only assume the legal procedures that have been established in the literature and by Faqih based on the sources of revelation: Quran and Sunnah. The judge missions missions process كالفصل between litigants and jurisdiction over minors and enforcement of wills and endowment management and the application of the border, and so on. In addition to being an important process is mandatory window and thus separated from the Mufti and Faqih.

On the historical level: Goes by many scholars and jurists to the beginning of the interruption of the work began with the Sharia colonial influence the late nineteenth century([10]), Even if a legal adult Egyptians say: “Throughout 14 Centuries were the ruling is the law in all Muslim countries and all citizens: Muslims and non-Muslims, national and foreign, until the nineteenth century century فتغيرت the circumstances and conditions the advent of European colonialism in our country”([11])، “The main centers of Islamic power in the Ottoman Empire, Iran and India collapsed, and they were forced to accept the European models of the nation-state and the international order, to abandon their pretense of complying with public law in the shari'a, and the European legal systems became the norm in the application of national law and international relations. The law is not a matter of the personal status of Muslims and the rules of inheritance,ar”([12]).

Although there is another point of view to go to “To denote the history indicate that the application of Islamic law not subject to the principle of continuity identical in the various Arab and Islamic countries, and not subjected to a sudden interruption due to colonial interventions”([13]), But they do not find seemed to acknowledge in the end “That this does not mean denying the occurrence of a break in the continuity of the legal system at the end of the nineteenth century”([14]).

With regard to the Ottoman history it is a curvy and ambiguous regarding the application of the law, and varies from one ruler to another through this period, long-standing rule; discourse official of the Ottoman Empire is higher than would Sharia, as Sultan Protector creed, thanks to positions of religious which was comprising the Ottoman court. But this has never denied the existence of deviations from the law here or there, in this or that covenant.

Some go to “Wrote that exceeded the Sharia law to a large extent, and while she was dealing with بإجلال entrusted to the margins of government practice… The judges were required to govern in accordance with the customary laws along with the law, that judges were treated as state employees administer the law of the State and not just judges follow religious jurisprudence books,… It was a great deal of the basic practice of Ottoman rule clearly at odds with the principles of Sharia”([15]).

It shows that the doctrine was not alone is Grasper reins to the present Covenant, and that Islamic law had been excluded from some areas, that the Penal Code did not enjoy great practical importance ([16]), And that there were no laws issued by the guardian and approved by the judge as a government employee, in the light of the considerations estimated by the State; may not necessarily be the approval of the doctrines of jurists.

On the other hand, the local customs and habits enjoys an important position among the provisions applicable in the aggregate, and sometimes it was approved by the jurisprudence, and other times they apply by virtue of their self, which is found in force in different periods of ancient history and contemporary.

However, the discussion of the continuity of the Shari'a is a matter of course. There is no public announcement or codification that is not filled with the jurisprudential heritage, and these interruptions here and there, both in governmental practice and in popular practice, But rather, its interruption in the level of legal application at the state level, and in a whole legal manner and not in deviation, which was not noticed by those studies, which we quoted some of its arguments,ar.

But the beginning of the interruption can be dated by the law, is the phase of the Ottoman reforms, which took place after friction dominate European economic and military; which impose rethink Islam in the Ottoman countries, both at the level of intellectual elites, or at the level of the ruling elite, where she was the idea “The inevitable superiority of Islam” To destabilize thanks Shock fact. Here began the dominant European simulations, these simulations were not to stand at the borders of thinking to build a new army instead of flagging Janissaries, but exceeded the legal and civil areas, with a view to the formation of a modern state in the country that has been strengthened with the Ottoman Sultan Mahmud II who defeated Alancksharien the year 1826. In parallel, the successes of Muhammad Ali in Egypt seeking to build a modern state, as well as.

“Can be divided into the history of the Ottoman reform in the nineteenth century clearly into three periods: The first reforms by Mahmoud, with the Sultan and his supporters touching on new ideas about government, institutions and law, and the stage of administrative and financial and legal reforms that were often under European pressure, finally adapted and adopted the elements of European legal codes and procedures. The legal elements of the Shari'a and its inclusion in the law of the State. The Constitution of 1876 was the culmination of the period of organization and the basis for the next phase,ar”([17]).

It should be noted here that the European powers imposed regulations economic order to open countries Ottoman to trade European, originated by the commercial courts that govern according to the method of European, was the first courts outside the framework of the law, and that the Sultan Abdul Hamid tried to resist the domination of European although not ([18]).

My aim here is not the history of the reforms, but the brief reference to the beginnings of the legal change and break the law historically roots. Ottoman reforms have contributed to change some of the concepts and practices, thanks to a combination of European domination, and attempts to seek the Ottoman Empire to meet those challenges create a strong modern state, and the law is one of those areas in which change through income([19]) :

1- Separation of the government from the authority of the Sultan and religious authority, has developed a legislative power in the hands of a formal institution (Judicial Court judgments), Non-personal and non-religious, and was considered a departure from the principles of the Shari'a as divine law.

2- And the separation of religion from government ففصلت jobs and religious institutions for state functions, resulting in a special space and government legislation and law outside the scope of religion.

3- It also resulted in the emergence of the concept of citizenship to upset the some legislation Principles, and the demise of concessions that were granted to classes of society without the other, and it was among Muslims, scientists and the military.

4- The emergence of the concept of the common law which is different from the law, customs and traditions, with the aim of development and progress.

This has reduced the Ottoman reforms (1839 1876 ​​m) Which is known to influence organizations, scholars; example, in Damascus “Reforms reduced the power of scientists through the consolidation of central control over Damascus, and increase the representation of the laity in the various local councils new, has challenged the basic assumptions of the reforms and the clear consensus: Scientists authority through تشكيكها in the appropriateness of their experience. Valberocrdoaon and staff which استنبطوا reforms represented an emerging social group has its own public interests that collided with the look and the interests of scientists”([20]).

Has undergone marginalize the influence of scientists to the attraction of extending Islands, especially with the presence of mixed courts that consider the issues arising from the commercial law, and this court a court of law which removed from the jurisdiction of scientists jurisdiction to hear legal in commercial cases, criminal and civil, though scientists have kept a role in . In the seventies and eighties of the nineteenth century diminished influence the spread of civil legal courts and their exclusion from the entire state between the Council 1970 And 1900 m.

One of the reasons for this exclusion is due to the central role of the world / Faqih was emanating from a central religious knowledge, while the reforms came open another color from the non-religious knowledge, and the riser that mimic the West, trying to behave Msaleckh in Renaissance([21]). This coincided with a general idea spread among a lot of Europe which scientists “Jurisprudence on the way to enforced as law, and concluded to this view in the light of studies of different legal systems in force in the Arab countries etc. احظوه of shrinking steadily for the application of jurisprudence since the end of the eighteenth century. They believe that this contraction is due to the nature of the deadlock in the jurisprudence… With expansion of Western influence in the field of teaching law and in various professions associated with the elimination been marginalized jurisprudence”([22]).

And certainly there is an ideological backgrounds behind this conclusion will come back to later discuss the effects between Tiare maintain and renewal within the Islamic Jurisprudence.

This outage, which occurred in the nineteenth century the form of a driving force to search for the intellectual and doctrinal reform, and took multiple forms of Islamic reform at the hands of Muhammad Abduh, and Rashid Rida, to bio-Islamic by Hassan al-Banna and the Muslim Brotherhood.

This reform is reflected in the difference image of the retrofit state actors, from the changing nature of power and social forces and the ruling People, the dream state correctional reformers or modern, having seen since the mid-nineteenth century that “Torrent that can not be paid” Creeping represented the West does not face only a strong modern state lead innovation in the learning processes of the West, and in the resistance to the military and political control بوسائله effective Muslims can acquire and use.

But this state elite was soon that is gradually separated from the men of the early twentieth century jurisprudence developed civic education is separated from religious education, and headed for the development of civil law and the establishment of national and private entities to approach the nation / state European National. Hence arose “National state” It is the second mode of the State. This pattern began in the East and reached its peak in Turkey down to the abolition of the Caliphate and the separation of religion and state, and occurred in Morocco in the fifties of the twentieth century. This dichotomy between the Islamic state will be a radical change which has had a significant impact later([23]).

The separation between the men of the state project and the men of Islamic reform led to the disintegration of the alliance with the modern national state with a great controversy over the succession and the abandonment of the new political experiment represented by the national state that embraces the culture of the West and its political systems between the 1930s and 1950s. Secularization has turned the Muslim Brotherhood into dealing with political issues, and they have come into conflict with the state,ar. At this stage appeared thesis “Governance” And”Social justice” With Sayyid Qutb, and the legal and political issues in Abdelkader Back processors, and so on to talk about Islam and political causes, and the political system in Islam, and the system of government in Islam. This reversed the conviction to the effect that “The state is the great tool to maximize the finality of the project”([24]).

In spite of that, when formulated in those states constitutions “National” A mostly text stating that the official state religion is Islam, and Islamic law is the source of the President or the main source of the sources of legislation([25]) ; Despite a sharp conflict broke out between those authorities and some Islamists about the fact “Islamic” Location on the impact of the escalation of the conflict between Islamists and nationalists in the fifties and sixties, and in the talk about governance and ignorance and so on. In contrast, these writings were political Islamic regime is seeking to develop an Islamic political system in order to build “Islamic State” That mission is the application of Sharia, a requirement which is agreed upon by all the so-called movements”Political Islam”, But differ in the means of implementation, as opposed to what appeared to Tmalsa a reference and marginalized from the direction of secular law by existing systems Almstatherh the power.


Secondly: The principle of rationing.. And time variables

1 The idea of ​​rationing and interpretative contexts

In the language laws: Assets, and the word is not Barabiy([26]), He Arabized of words. At the level of the concept which is to be out there in blogger invoked to people in their living has remained this idea into frequency in the first centuries of Islam, even the Koran frequency occurred in the collected between دفتين the blogger initially, and lasted for so, although it has been in the collection . As well as the impact frequency in the collection of the Sunnah, that is Omar bin Abdul Aziz workers collect the dispersed of the conversations, but it was not legally or already binding, even if the Caliph Abu Jaafar al-Mansour tried to make of Muwatta Malik reference to the judges they need to do, but the owner refused . And legislative authority, which remained owned by jurists as we have free and multiple, and admitted them to do so caliphs in most cases, but this multiplicity of opinions and judgments remained worrying, prompting Abdullah bin Muqaffa (D. 756 AD) Because the Mansour suggests that brings people out / one law, through his letter, which he called “Companions message” So that it combines the districts of companions and their fatwas Vtkon reference judges, here it is attributed to the first attempt to codify.

It is true that there was an ancient canons BC considered laws([27])However, rationing in the sense of legal drafting in the form of binding material in the judiciary, and cover different aspects of life, between the Act and the special law, and civil or criminal penalty, and so on, did not know, but in the modern era. The first law defined by the Arabs in this regard was the Napoleonic Code (French civil law) 1804M, and the nineteenth century saw a trend toward active even be called rationing “Legal age groups”([28]).

The first integrated work back to codify Islamic jurisprudence magazine was judicial judgments at the time of the Ottoman reforms, Year 1876, and has been working out later in the country under Ottoman rule, followed by individual attempts, such as those carried out by the Undersecretary of the Ministry glenoid (Justice) Muhammad Qadri Pasha in his book “Guide Hieran in knowledge of the human condition” Which was printed in 1890 AD, and his book “Personal Status” The book “Justice and fairness in terms of endowments” Which was printed in 1893, and then began collective action in this kind of composition in the second decade of the twentieth century. This was followed by several attempts of my purpose here is not surveyed, but hopes contexts and fields, and the transformations that have taken place in the formation of the legal culture within Arab societies, the impact of contact with Western culture, and the resulting duplication and then a break in the Islamic culture.

Some researchers distinguish([29]) Between three consecutive periods of rationing movement:

1 During the greater part of the nineteenth century in developed countries try to configuration (Egypt) Or in crisis (The Ottoman Empire) Renew its legal institutions while preserving the sovereignty.

2 At the end of the century continued to try to update, but under the direct control of foreign countries.

3 In the period between the two world wars began to reconsider the previous regulation on a national basis and practical flourished in countries that became independent.

This distinction seems useful, but not sufficient or careful what we wish expressed after meditation contexts rationing, and tracks, and the explanations for the Ottoman state resorted to rationing through judicial judgments magazine troubled interpretations of the authors, some interpreted that the Ottoman Empire “She felt the danger of man-made laws that threatened to display attractive and coordinated by the arbitrator, and formed a committee of prominent فقهائها فأصدروا Journal”([30]). While others argue that the motivation for that is practical in nature, aimed at the establishment of the law “Easy to refer to it and taking it provisions”, After the “Established the regular courts and transfer to some terms of reference of the Islamic courts, was not able judges of that court to take the provisions of the books jurisprudence of the different methods and the large number of opinions in which, because the distinction between those views needs to Queen doctrinal special, special training, not available for these judges illegal thing ”([31]). And the third believes that the collapse of the Ottoman power forced to accept European models([32]).

But that explains the attempt Ottoman It was not the first attempt([33]) They came within the context of the Ottoman reforms or the so-called organizations is that stretched my covenant Alsultanin, Abdul Majid and Abdul Aziz, and ended in the range of 1880 after taking Abdul Hamid II four years. In this period originated commercial courts that govern the way in Europe, then turned to the courts in 1847 mixed (The civil and criminal courts)In agreement with the European authorities, and published in 1840 Group of criminal laws, the age of commercial law in 1850 adaptation of the French law, and Skin criminal cases of Shariah judiciary, and judicial systems has expanded even got to legalize same law([34]).

“Thus, over the past forty years, banned creeping Western legislation in the systems of the Ottoman Empire, banned reversing Islamic law, and legislation dominated the Western justice system and to regulate trade and regulate land and criminal organization” ([35])But the question that must Reflecting Here is why escaped all this judicial judgments magazine?

Do not look the previous interpretations at least enough to understand this exception to the wave of Westernization of this legislation, and perhaps the circumstances it can be understood through the character of Ahmed Cevdet Pasha (1822Mr. 1895 Mr.) Which was close to the Rashid Pasha initiator organizations is president, and he had to learn French, and some researchers described([36]) That “Secular” Considers that the secular courts are compatible with Islam and necessary to him, but at the same time Ahmed was Judt had opposed the adoption of the French Civil Code proposed by Ali Pasha (He was prime minister in 1867 AD), On the grounds “That the adoption of European legislation in this sensitive field, which has a strong law suits constitute an invitation to active opposition, put Judt need that govern the civil courts according to the law and clearly undermine the confidence of foreign and non-Muslim Ottomans”([37]). And Ahmed Cevdet this is who heads the judicial provisions that magazine fully codified law for the first time, the European version, and according to the Hanafi school, and continued 1969 Until 1976 AD.

Even now it seems there is confusion in the interpretation of such an attempt, led by a person these qualities, but it seems to me that what the in Mmakrth contributes to further clarification, he says: “Some people have adopted the idea of ​​translating the French civil law into the Turkish language of the rule whereby in the regular courts, but this idea is acceptable; because changing the basic laws of a nation, it may mean destruction. The scientists found that those who have gone astray and carried Occidental such as ideas, are not believers. On the other hand, the Franks has consistently say: Enacted your law and let us know the parishes”([38]). Thus it seems that the attempt that was trying to “National”, Venbernh tone of national Muslim and not, as is evident from the text and the circumstances surrounding the subject, at the time an account is calculated for other views, which believes that the import laws in this area astray.

As for Egypt, which was outside the Ottoman influence, not pleased by the Ottoman laws new or magazine judgments of justice, and the leakage of the legislation west after the Treaty of London in 1840, the entrance to the trade, after opening up its market after the treaty, and the aliens are subject to the spending consular even in their dealings with the Egyptians, 17 Court, 17 legal system, each according to his nationality, that Egypt turned to the French legal system in the mid-sixties of the nineteenth century, when translated French law at the time of Khedive Ismail (1863Mr. 1879 Mr.).

But views differed on the interpretation of this shift, while the human advisor believes that this “Ordered the house at night”([39]) ; Quotes Rashid Rida Khedive Ismail was under pressure to apply the laws of European, especially French law([40]). But Tahtawi, who translated the French law saw that the goal of the Khedive of translation closer to the Egyptians, “Not even unaware of the people of this nation's assets [Rules] The other kingdoms, and in particular that appropriate relationships and occasions give and take calls for familiarity with such asset position to be deal with them to settle things on the insight”([41]), While going Sheikh Makhlouf Miniawy the judge to be unintentional Khedive of translation “Comment on the laws of the destination to determine the legitimacy of this agreement and disagreement with the laws provisions Shara”, The Makhlouf this has Commissioning of the Khedive and commented upon in a book called “The application of civil and criminal law on the doctrine of the owner”([42]).

After the reign of Ismail, the civil courts was established in 1883 by six of التقنينات taken from French laws. Human explains that taking French laws here was not because of the rigidity of men Sharia, as they say; because the Ottoman magazine was a list, and because Muhammad Qadri Pasha in Egypt was the codification of the provisions and time. Says: “The historical documents reveal that the reason that the Egyptians called taking this التقنينات, is the desire to give states the privileges Egyptian legal system established along the lines of what ارتضته these countries courts mixed, Fterdy the after submission of its nationals to him, and Egypt recovered sovereignty legislative judicial Imperfect”([43]).

After all this, it was possible understanding interactions that stage of historical and effects left by the friction with the West, both in the political influence of colonial, or in friction بمنجزاته property that was in the form of repairs or organizations, as well as in its economic and trade which was gate metaphor laws or imposed to protect merchants Europeans . Rather different interpretation of those transformations which highlighted the party than in places; only sign of disorder that stage directions, which were filled with Almngrbh trends, and are trying to reform pairing, and maintain([44]).

It caught my attention, that all attempts at regulation of individual and collective, formal and informal, ranging from the Journal of the provisions of justice Ottoman Empire up to the post-national state, were not put rationing law in full, but was limited to personal status law for the most part, and even magazine judgments of justice (Contracts and commitments and Civil Procedure) Without trade provisions and the provisions of the land and others, whose legislation was taken from the European laws.

Did not stand the idea of ​​full legalization of Sharia, but in the modern era under the national state, with a thesis “Universality of Islam”, Ie, in under kinetic jurisprudence, and support that thesis with the application of the law, which were common in recent decades in the shadow of talking about the Islamic solution, even occurred in the illusion that the application of Sharia means applying the border, any penal system.

The application of Sharia call came a comprehensive personal status, المعاوضات and businesses and penalties([45]), Has been a focus on felonies or sanctions; because “The first attack on Sharia law was an attack on the provisions of the Criminal and the border”([46]). Here comes the importance of the book Abdelkader Back “Criminal legislation” ([47]), Which was written at the behest of Hassan al-Banna, which he described Awa saying: “Book Islamic criminal legislation is the first book in our jurisprudence, which deals with the provisions of Islamic criminal jurisprudence arranged who you know modern law books compared to peers in the modern laws with the handling of Islamic jurisprudence in the four doctrines, and sometimes adds to the opinion of Imam Ibn Hazm virtual.

The book has gained special importance; because the Islamic criminal jurisprudence leave application in many Muslim countries (The exception of Saudi Arabia, Yemen, Iran and Afghanistan) Since been replaced in the Ottoman state regulation of Suleiman the Magnificent, so I take care of it and stop the scientific work to renew; since they تابعان usually for the benefit of the judicial process and the application.

And civil jurisprudence fared much better than the Islamic criminal counterpart; he continued to work in the form of judicial judgments magazine… Have not gone fifteen years until the book was inspired by key lawmakers and researchers in a number of Arab and Islamic countries, and then translated into Farsi, Urdu and English, and added a number of Shia scholars compared doctrine Jaafari, and has published several editions in Iran, and use in Afghanistan days of the monarchy ”([48]).

Which draws attention here, that the transfer of European laws and translated, did not have to pay to create a magazine judicial judgments, but established a number of comparative legal studies between law and Sharia, Knho what did Sheikh Makhlouf, or Muhammad Qadri Pasha was preceded by reference to their compositions, “Comparisons between legitimate civil ordinances and Islamic law: Comparison between the French jurisprudence and the doctrine of Imam Malik ibn Anas”.

And meditation, which requires that such comparative studies concluded an agreement in a large proportion of French civil law and jurisprudence, especially the Maliki school, even if some researchers went on to say: “The beholder to this literature finds similarities in depth between the branches of Islamic jurisprudence and French law, and the dispute almost exclusively in the proportion of easy questions that the dispute due to the conditions of the development of civilization and technical requirements of the industry”([49]). But more than that, it was noted “There is a mismatch between certain provisions of the Journal of the judicial judgments and French civil law, Davison pointed to the idea that this match might be a matter of chance, or the result of an old Roman influence on Islamic law”([50]).

But there are different attitudes toward this agreement, some kinesthetic see that the agreement is merely a “Tkoh invalid تغرير the people”([51]), But sobering historian of Kalphari go to “That many of the laws current situation consistent in judgment with a consensus jurisprudential doctrine of the creeds, and he sees assigning legal provision to the opinion idiosyncratic which is consistent with what makes him essentially doctrinal and cut it relates to its source of positive foreign, thus paving to elicit laws and their interpretation and application-mediated elimination of sources ”([52]).

2 The principle of rationing.. The area

The idea of ​​rationing since emerged to oppose the jurisprudence, it was considered then Shaykh al-Islam Hassan Fahmi that a project magazine judicial provisions of competence and not from the jurisdiction of the Ministry of Justice([53]). The objectors felt that the state takeover their authority Knatqan the name of the law and his guards([54]). These objections continued historically, it has received several attempts to legalize a real opposition in Egypt: Sometimes because rationing will abide by scientists doctrine appointed Viered the other sects, and sometimes for his release from the four schools, or for violating the customs of the people as a 1926 law preventing more than one marriage and one without the permission of the judge([55]).

And continued opposition, even if many busy research included by arguments Almanaan and answered ([56]). But the difference is that opponents of the idea in this era was limited to the most in stream ad hoc predominantly by the Salafi movement from the likes of Muhammad the Secretary Shanqeeti and Bakr Abu Zayd and Abdullah Al-Bassam, the Council of Senior Scholars in the Kingdom of Saudi Arabia([57]), Even if a contemporary scholars inventory rationing opponents Arabia only scientists([58]).

The Islamic history and jurisprudence, as we have pointed out, were a sign of legal or judicial application by the judge alone, which separates people, and their rulings and rulings are necessary for the adversaries, And he had wide freedom in the door of Taizir, and the judges were not bound by the texts of reference one, and therefore varied provisions between Egypt and another, and between the doctrine and another; because the judge was governed by diligence, and based on the doctrinal doctrine that mimics,ar.

The “Received texts developed by the Mufti and jurist with high reference workbook, the mismatch was jurists contemporaries and Subsequent all their rank: Book justice or judges, مفتين or classified scholars derive standard provisions considered as a typical doctrine”([59]), And there was continuous replacement operations of cases and opinions reflect the doctrine of flexibility and its ability to adapt obvious.

The rationing is based on two elements: Wording of the provision idiosyncratic legal words, and compel Judge elimination and according to this rule, even if contrary to his opinion ([60]). But the confusion occurred in the second element, but this objection signed on rationing.

In fact, the debate in the position of rationing that we passed a phenomenon found in reality a debate between two opposing positions: The position of governor seeks to keep the construction idiosyncratic old and bases, and retains Ptsourh heritage of the judiciary and governance of law; compared to the position of regenerative trying to woo systems contemporary European to establish governance law in light of a modern European origin, and in the conflict with the laws of imported, it enters the jurisprudence in a new phase, “A new dress” Or “Modern jurisprudence” Or “Contemporary jurisprudence” Or so, to demonstrate the flexibility of Jurisprudence and validity of every time and place, this is the attitude of his time and interact live with the challenges.

While the first team of is astray rationing and taboo Western heresy to other descriptions([61]) ; From the second team of the opinion that rationing duty, and not only permissible([62]) ; Because it is the key to the application of Sharia in this era. And explain the logic of each team would prove the truth of what we have presented the image of the dispute between the two teams.

The idiosyncratic logic of classical and historical reality, which will depend on the first team opposition to the legalization of serving launched several problematic:

The first: The judge has a lot of freedom, both in terms of diligence in the report of its provisions, or in terms of the broad freedom self Altaazer, and this is a decision accordingly and history, it may oblige the judge ruling in accordance with the doctrine of certain([63]). And Rationing kills those of freedom, and the judge is required based on the law governing the preset. The while rationing owners see that the freedom of the judge is no longer acceptable in light of the modern state and contrary to the principle of separation of powers, and with the legal principle that sees that there is no penalty but the text([64]).

It connects Btakova Shaykh al-Islam and scholars of his time when the emergence of the magazine Ottoman Empire, which we have referred, that the new law emanating from the jurisprudence, it becomes the law of the state, and the judge employee has, and he has to come to a judgment based on the laws approved by the state, and not by reference to the sources of jurisprudence wide.

“More importantly, that Alqonna in the modern legal system Sharia deprived of its traditional, which give it its distinctive character, and the judge, as we have seen come to a judgment by reference to the rules and interpretations and not generalized to the laws, and is categorically ruling is subject to appeal. Despite the recognition of the possibility of the judge in the wrong, you will not be judged by that away by virtue as long as it is honestly struggled to reach the best judgment able to do”([65]).

Second: Insists Mahramo rationing to meet Heritage idiosyncratic all تنويعاته, and to maintain the freedom of assuming the judge in the report of the provisions, especially the trend ancestral hostile to configure tradition sectarian, argue that requiring the judge the law uniform does not stop him only the freedom of ijtihad, and referee's opinion might think otherwise ([66]). The inventory of the opinion of the law, narrows the successive accidents, and would lay the deadlock and prevent without provisions climate change times, it is difficult to change the law, and becomes overloaded shoulders Altaquemen.

It is true that mention here that Ibn al-As he wrote to Mansour “Companions message” Saliva idea that the judiciary is up to the judge and diligence, “Even issued by the contradictory provisions even in town per, Vtsthal blood, chicken and money in hand, and deny the other hand, depending on the judge's ruling”, But researchers mighty saw “To solve the problem caused by the plurality of opinions in the founding period and beyond in itself has become a salvation of the legal system during the subsequent periods of its development, and what was legitimate for change and adaptability to become possible without this pluralism”([67]).

It confirms that, which hit the hardship people during the Ottoman eliminate the binding Hanafi doctrine, which summoned to be issued by the royal permission to be sentenced without Hanafi exception, the text of which came in the: “It is well known that many issues of Islamic jurisprudence as a matter of annulment of the contract of absent absenteeism absence, but consistent with the elimination of some doctrines without some, how many districts can not be eliminated now on the doctrine of the lawmaker Hanafi; However, the decision to implement the judiciary is limited to the extension of the authorization to the deputy Hanafi, to give the judiciary to those who spend the descent on the doctrine of those who see him eligible for the judiciary and the ruling,,ar”([68]).

It is interesting that these same thoughts and fears, meets the various parties to go, but the indigestion commitment doctrine Hanafi alone during the Ottoman rule was the reason to ask Sheikh Muhammad Abduh, and Rashid Rida idea of ​​rationing jurisprudence; Farshid satisfaction is advisable that opinion of Hassan Fahmi al-Islam : “The right that there is no difference in the judges imitators who do not have a say in matters between Hanafi, Shafii, and the question of belonging to the implementation of the authority; Every eye Sultan capable of implementing the rule performs whatever doctrine that his judgment, not a matter devotional”.

The Mohammed Abdo After that Crown Ifta in Egypt, the supernatant courts and wrote ضافيا report about the problems surrounding the work, and reviewed issues where the hardship occurred on litigants, and thus no longer saves the symptoms and the souls that came to maintain law and said,: “All this must be placed in the hands of a committee of scholars to extract from the rulings of the Shariah, which is a cure for the nation's causes in all the doors of transactions, especially what can not be considered other than the Shari'a courts of personal status and endowments, and what they extract is a comprehensive book of everything that is needed in those And it includes what is drawn in the doors of legal proceedings, and the order is issued to be the work of the judges on it, if they closed the matter, they reviewed who is in the function of Ifta Haqqaniyah or Egyptian homes, and should consider it,ar: By himself or with the Committee of Scientists; as needed”.

But Rashid Rida says: The proposal has not been implemented did not work; due “Egypt judge rigidity that comes from Astana and fanaticism, and the rigidity of the other judges, scientists, and not paying attention. Had they met and wrote a book that proposed by Mr. Imam, and called on the government to implement to have done. This inertia and neglect of scientists has been the biggest reasons for Quote Ottoman and Egyptian governments of European laws and European legislation in Egypt widened more than Astana; scientists because the influence of the weaker, and their care less government affairs”, And then say later: “It did not convince him the words and conversations convince conditions and accidents, although his nose”.

Third: Is that “Rationing brews mind to accept the positive law, which is exploited by intellectuals of Western culture”([69]), And the Salafist argument says: “Law made consists of an image and fact, Vsourth on materials and body with numbers… ; Because he is afraid of the presence of image format that infuses the spirit of its origin in the successive generations albeit virtually impossible, God willing, but it must take caution”([70]). Sheikh Mohammed said Secretary Shanqeeti the: “Postural system composed reality of things: One: Image that is its shape and its body in the order of articles and diligence to bring sense and adjust the numbers. The second: The fact that his spirit that are Mchapkh to that structure and photo, Kmchapkh, the spirit of the hull. And that spirit is the rule of the idol, became blogging encompassing a one, and one half of Monday.

It is thought, thinking strong, intense fear of fear: The development of the form and the image of the positive system by codification laid the foundation stone for inflating the spirit of this original structure. There is no doubt that the current circumstances and the circumstances of the future confirm that the currents of atheism in the world, which look at Islam with humiliation and disdain, The attractive that attracted these countries from the Islamic system, which was inherited by tens of centuries to the positive system that the devil enacted on the tongues of the first, will attract this country one day to what attracted other countries where hundreds of scientists;,ar”([71]).

Once again we should point out that the aim of this revenue is not inferred opinion without the other, and offer views, but تجلية the logic that governs every position, and knowing the limits of consciousness and psychotropic actors in it, you are a modern influences or heritage.

However, raising the attention that this logic ancestral latter is found among some researchers and anthropologists Orientalists, فسامي Zubaydah lists the following problems: “Started magazine [Judicial] In accordance with the methodology and the French version, with it derived its article and the first axes of the law, and so it was a European form and content Islamic. And perhaps wonder about the extent to which they can content to keep in shape… It was the actual content of its ordinary and mundane… Valqonna according to civil law practice in the civil courts stripped of Sharia all religious Arditha, institutional and ringed lose rituals… The elements that remained from the Islamic sharia law in modern legal systems were at the expense of converting those elements within the statutory law of the state and its application in the courts on the way modern European and legislative systems; what form in fact a victory for European models”([72]).

Fourth: That rationing would be presented to the large Sharia tweaking, this سيزج the Sharia in history, and impair Musdricha the divine, the “Modern Islamic culture has been explicitly deny and, until recently, that this law may be passed any development recognized”([73]), And awareness of contemporary jurisprudence preoccupied with the distinction between the law and the law always believes that the law came down from the first day “Young incomplete”([74]), And even the so-called knowledge “History of Legislation” It is a modern science, and lacks clarity yet despite the many writings which([75]), We discussed this embodies the shape to which we aspire in the history of Islamic law.

So could the jurist kinetic be aware of the variables of history, Vtfaal with the wave of social and political changes and legal that accompanied the military control and cultural development of the West, these variables imposed a new reality found Faqih himself the marginalized, and his understanding is losing its relevance to these variables, which showed the need to replace the traditional system in the first half of . Then it was soon the movement of legislation that arose based on local laws and foreign that Ahogt Faqih contemporary to change the system architecture idiosyncratic existing order to maintain the link between the law and the reference divine, but connection compatible with this new reality, and possesses in itself viable and application.

But these transformations with their positives, and with the attempt of the jurist not to lag behind them and try to find a new role in the change, carried other negatives, a new profession emerged, called the law, helped marginalize the Faqih again, and ended the role played by jurists In the system of jurisprudence, and thus can no longer be considered part of the legal system, so that the influence of the faculties of Islamic law in the Islamic world, which had to make some amendments in the legal curriculum, and lost official support and material, and marginalize their social role,ar.

This effect was not limited to al-Faqih and jurisprudential practice, the “The form of the law industry transition from the hands of the traditional jurists to the State Attorney fundamental change in assets doctrine, فاختفت the issues such as the industrious and snob, and diligent individual disappeared and replaced by legislative committees composed of government lawyers contemporary”([76]).

Was left out of this trend, but the few that category live outside those effects, retains Ptsouradtha heritage theory, but it does not affect the historical reality nothing. Thus the idea of ​​rationing imposed itself on the classic trend in jurisprudence, and went from being physically project seeks to develop requirements “Islamic Solution” To be applied to the national state, which would require legislation, economy and politics, and so on; for the necessities and social process, and in order to catch the rest of the role or impact.

This shift we notice through processors idea of ​​rationing of men are not Bhrkyin, and through discussions jurisprudential classic that permeate their research, and through their evidence on the permissibility of regulation, and their answers to the arguments of opponents, while if we compare these writings writings of jurists activists such as Abdelkader return or Tawfiq Chaoui . This means that the idea of ​​rationing incorporated into the awareness of the idiosyncratic and in accordance with the mechanisms and logic.

As a result of the new legal thinking which created by the process of codification, the men appeared in the west of the law through the eating of Islamic jurisprudence new look “Next to the view, which sees jurisprudence characterized by inertia which is the dominant view in the books Orientalism legal, another look based on the nature of transformation and change in jurisprudence, and emerged the notion that Islamic jurisprudence has been separated from its roots of books jurisprudential old and has become difficult for non-specialists to reach understanding”([77]).

Can be summed up those tracks and transitions on the way Talal Asad, who said: “We can look to the Islamic revival contemporary as attempts to evoke the Islamic tradition adaptable and linked to modernity, including the status experienced by the Muslim world at present, and even more than that, ie as attempts to formulate ways reluctance مناجزة not only with the West, but also with Islamic history”([78]).

This thing about the kinetics of Modern and Contemporary History, which left its effects deep awareness of idiosyncratic and tracks, in what could be considered the last stage took place where the collision between the tendencies situation humanity and between revelation and texts, and was succeeded by that of divisions and debates and the destruction of the built cultural and Islamic legal systems, in favor of what is known as . But remained Search those controversies that have emerged in these kinetic and took a picture of the concepts and conventions has reduced its views, and was therefore addresses the clash, I mean terms: Jurisprudence, and the law, and the law, how it appeared and how it evolved? . These issues need to be a difficult personnel examine the independent and complementary, ask God's strength to complete it in the future.

God is the source of strength, and thank God that His grace is righteous.

[1]) It is important to note that words like: My predecessor, classical, kinesthetic, contained in the search, is just a function descriptions do not bear any standard or rule calendar.

[2]) Look: Around a central doctrine: Moataz Al-Khatib, fatwa courses and dialectical doctrine and policy, research presented to the Conference: Jurisprudence of calamity and the renewal of the fatwa, Oman, 1 ـ 4/4/2007.

[3]) Gold Tsér, religion and Sharia in Islam, (Arabic Translation) Cairo, Baghdad: Modern Library, Muthanna library, 2nd Floor, undated, p 65.

[4]) Look: Bernard Botyvo, Islamic Sharia law in Arab societies, Cairo: Sina for publication, i 1, 1997, pp. 31 32, which may benefited from Gilbert Dolano of both talking about that this model was prevalent in the nineteenth century. However, I think that these tasks found throughout the history of Islamic jurisprudence itself through the centuries.

[5]) Look: Joseph Schacht, the heritage of Islam, Hussein translation sociable and charity Sodqi willful, Kuwait: The world of knowledge, i 3, 1998, 2/106, and see: 2/ 95 ـ 100.

[6]) And Wael Barber, doctrinal authority: Tradition and innovation in Islamic jurisprudence, translated by Abbas Abbas, Beirut: Islamic Dar orbit, i 1, 2007, p 236.

[7]) Ibid, p 240.

[8]) Barber, Authority, PO Box 244, Sami Zubaida, law and power in the Islamic world, translated by Abbas Abbas, Beirut: Islamic Dar orbit, i 1, 2007, pp. 82, says: This is common in the Ottoman practice. In the books: “Mother” The judge literature, references to the need to consult the judge Fakih.

[9]) Is d. Jamal Eddine Attia, renewal of Islamic jurisprudence, Beirut: Dar thought, i 1, 2000, p 27 28.

[10]) Mohammad Siraj, Islamic jurisprudence between the consideration and application, Egypt: Without place, 1994, pp. 9, and Abdullah bliss, towards the development of Islamic law, translated by Hussein Amin, Cairo: Cairo Institute for Human Rights, 2nd Floor, 2006, pp. 61, as well as that this is a diagnosis Islamists Kmenaa the Qattan Wad. Yusuf al-Qaradawi, and the Salafis.

[11]) Sophie Abu Talib, the draft regulation Ready law since 1983, interview conducted with him Atef appearance, published on Islam Online, on 22 May 2007. We have already mentioned also in the: Sophie Abu Talib, the application of Islamic law in the Arab world, Cairo: Cairo University, i 3, 1986, p 9.

[12]) Abdullah bliss, towards the development of legislation, p 61.

[13]) Bernard Botyvo, Islamic law, p 306.

[14]) Ibid, p 307.

[15]) Sami Zubaida, law and power, p 197. And decides that the Penal Code largely falls within the jurisdiction of the custom is not the competence of the law, while acknowledging the existence of objections from scientists received a response in some cases.

[16]) Look: Zubaydah, Sharia, p 192.

[17]) Zubaydah, Sharia, p 209.

[18]) He attributed the Manna Qattan first application of positive law in Egypt to the Khedive Ismail, who applied the Napoleonic Code civil After that translating Refaah Ththowa, but Mohammad Siraj explains that the translation was in order to identify it, and with a pressure-European to be applied, and that, according to Sheikh Makhlouf Miniawy who commented “Tkoh void the owners are trying to give a positive law legitimize”. Look: Manna-Qattan, the history of Islamic legislation, Cairo: Library, gift, i 5, 2001, pp. 401, Mohammad Siraj, Islamic jurisprudence, p 271 272.

[19]) Look: In the Ottoman reforms: Zubaydah, Sharia, pp. 208 et seq.

[20]) David Commons, Islamic Reform: Politics and Social Change in Syria late Ottoman, translation glorious Radi, Damascus: Dar-term, i 1, 1999, p 23.

[21]) Look: About this in: Commons, Islamic Reform, p 24 25.

[22]) Botyvo, Sharia, p 34 35. See: Manna-Qattan description of the leak law “Intruder” Across the faculties of law and the campaign of Western thought. In: Manna-Qattan, the history of Islamic legislation, p 399 401.

[23]) Compare: Radwan al-Sayyed, politicians contemporary Islam: Reviews rebounds, Beirut: Arab Book House, i 1, 1997, pp. 160 161, and Burhan Ghalioun, Arab ordeal: The state against the nation, Beirut: Center for Arab Unity Studies, i 1, 1993, and Abdul Salam al-Tawil, the Arab state in the wind, Cairo: Cairo Institute for Human Rights Studies, i 1, 2006, p 324 327. To find out the impact of the reform alliance Men with the state in the emergence of methodology for the purposes of the law, see: Moataz Al-Khatib, Makassed job: Legitimacy and objectives, research published in the Proceedings of the Symposium “Purposes of the law and ways to achieve them in contemporary societies”, International Islamic University, Malaysia, 2006.

[24]) Jadaan, in the final salvation, Oman: Sunrise House, i 1, 2007, p 85.

[25]) According to Abdel Hamid Metwally “This text does not represent more than a significant tribute to the majority religion, or rather just atone for the guilt of State for failure to respect the provisions of the Islamic Sharia in legislation”. Look: Botyvo, Sharia, p 308.

Opponents are trying to this text from secularists and others say: This text is found under the influence of movements “Political Islam”, But of human and Judge Tariq historically proven that this text is found before the rise of political Islam movements originally, and that was an expression of the reality of the communities, and approved the agreement of all the parties with little controversy. Look: Tariq human, on the amendment of Article II of the Constitution, an article published on 7/3/2007 On http://www. islamonline. net/Arabic/index. shtml.

[26]) I'm perspective, San Arabs, Beirut: Dar Sader, 13/348 (Gannan).

[27]) انظرها: Jamal Eddine Attia, the date of the idea of ​​rationing, the contemporary Muslim Magazine, Number 11, 1977, p 37.

[28]) Ibid, p 41.

[29]) Botyvo, Sharia, p 158 159.

[30]) Manna-Qattan, the date of the legislation, p 403.

[31]) Mohammed Mustafa Shalabi, the entrance in the definition of Islamic jurisprudence and rules of property and contract, Beirut: Arab Renaissance House, 1985, p 158. See: As well as: Gift of beauty, history codify Sharia, PO Box 45, and Botyvo, Sharia, p 56.

[32]) Abdullah bliss, the development of legislation, p 61.

[33]) Preceded the reign of Suleiman the Magnificent in the sixteenth century synthesis effort done by the Shaykh al-Islam Abu Saud, and meeting Abhar of Sheikh Ibrahim Al-Halabi (ت956هـ) Then came the effort synthesis feat in the seventh century, prepared by scholars of India on behalf of the Indian fatwas (Worship and transactions and penalties) Commissioned by Sultan Muhammad Ornek Zeb Aalmacair. Look: Tariq human, contemporary legal situation, p.15. And Abhar Forum was taught in parts of the Ottoman Empire and was translated into French in the late eighteenth century, and it was adopted Schacht, and considered “The Islamic jurisprudence in its final form without take the form of a legal code”. Look: Botyvo, Sharia, p 56.

[34]) Look: Details procedures this stage,: Tariq human, contemporary legal status between Islamic law and statutory law, Cairo: Sunrise House, i 1, 1996, pp. 14 and beyond, and Zubaydah, Sharia, p 221 and after.

[35]) Human, legal status, p 14.

[36]) Sami Zubaida is, in law, p 223.

[37]) Ibid, p 224.

[38]) Berkes, Niyazi, The Development of Secularism in Turkey, London: Hurst, 1964, p 167. And him transferred Zubaydah, Sharia, p 224.

[39]) Human situation القاني, p 17.

[40]) Look: Mohammad Siraj, Islamic jurisprudence, 272.

[41]) He said that in released تعريبه of the French Civil Code. Mohammad Siraj, Jurisprudence, p 271.

[42]) Siraj, Jurisprudence, p 272.

[43]) Human, legal status, p 16.

[44]) Compare human بطارق, legal status, p 5 6 As attribute the turmoil in the legislative structure into three components interact with each other and conflicting in the nineteenth century, both in the Ottoman Empire or separated from the: Legislative stalemate Taker for Sharia, a method of reform who has taken to cope with the social and political situation, and the European conquest of political, economic and military.

[45]) Look: For example, a dispute Manna Qattan with Egyptian Minister of Awqaf in this regard: Al-Qattan, obstacles to the application of Islamic law, Cairo: Library Wahba, i 1, 1991, p 138.

[46]) Al-Qattan, obstacles to the application of Sharia, pp. 13, and Al-Qattan, the date of the legislation, p 400. European countries, was quick to cancel the Penal Code “Backward” - According to the plan. Look: Botyvo, Sharia, p 90.

[47]) Look: Abdelkader return, the Islamic criminal legislation comparative positive law, Beirut: Arab Book House, 1/9.

[48]) Mohammad Salim Al-Awa, provide the book Encyclopedia of Islamic criminal jurisprudence, Cairo: Sunrise House, 1/5.

[49]) Mohammad Siraj, Islamic jurisprudence, p 278, and see: P 272.

[50]) Zubaydah, Sharia, p 225.

[51]) Al-Qattan, obstacles to the application of Sharia, p 14.

[52]) He said as part of his search in a seminar taught law at the University of Qatar, in 1995, and moved with him: Jamal Eddine Attia, renewal of Islamic Jurisprudence, p 40.

[53]) Sheikh Hassan fatwa regarding the judge's ruling without the Hanafi school, which believes that the permission of the Vice [Judge] That governs the rest of the statements contrary to the doctrines say Mofti and performers to confuse things Abbad. انظرها in full: Manar Journal, Volume 16, Number 4, 1913, p 264.

[54]) Look: Zubaydah, Sharia, p 225 226.

[55]) Look: For those attempts that took place in opposition: Mustafa Shalabi, the entrance in the definition of jurisprudence, p 159 160.

[56]) Like: Jamal Eddine Attia, the issue of legalization of Islamic law in principle, Journal of Contemporary Muslim, Number 12, 1977, pp. 56, and Abdul Rahman dosage, rationing provisions legitimacy among Almanaan and Almjizin, research published on Islam Online, dated 2005, and al-Qaradawi, the entrance to the study of Islamic law : M%

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