Introduction To The Judiciary And Fatwa And The Difference Between Them

Some constitutions stipulate that Islamic Sharia is the only source of law, and this is an important feature that has two consequences:

A- Every law issued in contravention of the provisions of Sharia is null and the judge may not rule on it, and it is permissible to file a case before the Supreme Court to invalidate it.

B - Islamic jurisprudence is the reference for understanding and explaining the laws. He must rely on Islamic jurisprudence to know from which school the laws were taken.

In this there are discretionary additions for which Islamic jurisprudence and courts can accommodate, some of which consist of one judge, and others that consist of three judges. There is no contradiction in this, and if it is new, there is nothing wrong with it. There is no public prosecution or public prosecution in the judiciary, and it does not exist in jurisprudence, and in the past it was the Hesba system.

Fatwas mean: knowledge of contemporary issues and their treatment, and they are of three types:

  - A type of research within the framework of fiqh councils, such as the insurance contract.

  - New issues like the misyar marriage.

 - Issues that need commenting, such as the Personal Status Law in Egypt and Jordan, and the issues that it contains, such as obligatory khul’, which is a divorce by agreement, a contract based on consent, a netting contract with which the husband may or may not agree. A decision was issued in the Islamic Fiqh Academy on the subject of “insurance” ten years ago, and we do not set ourselves up as a mufti, but rather shine the spotlight and the mufti informs about the ruling of Sharia in a specific case or issues, and Allah says:

( وَلاَ تَقْفُ مَا لَيْسَ لَكَ بِهِ عِلْمٌ )  (And do not pursue that of which you have no knowledge).

The Importance Of Fatwas

The importance of the fatwa is due to another issue, which is that what is required of the Muslim is to worship in its broad sense, not in its narrow sense. Rather, the Muslim must base your life on the divine approach. This concept means Islam and submission to Allah Almighty, outwardly and inwardly. In it is what Allah wants, and space for what Allah wills anger, and whoever believes that this is permissible is not mistaken, rather he will not remain a Muslim, the Almighty says:

( أَفَتُؤْمِنُونَ بِبَعْضِ الْكِتَابِ وَتَكْفُرُونَ بِبَعْضٍ )  (So do you believe in part of the Scripture and disbelieve in part?) And it is a slander against the Jews, afflicting the Muslims if they do it, and some people enter into the saying of the Allah say:

( لَّيْسَ بِأَمَانِيِّكُمْ وَلا أَمَانِيِّ أَهْلِ الْكِتَابِ مَن يَعْمَلْ سُوءاً يُجْزَ بِهِ )  (Paradise is not [obtained] by your wishful thinking nor by that of the People of the Scripture. Whoever does a wrong will be recompensed for it), If a Muslim does what Allah has forbidden, he will be subject to the slander that befell the Jews, and from here we criticize a sayin, (What is for Allah is for Allah, and what is for Caesar is for Caesar) and (Religion is for Allah and the homeland is for all), and Allah has enjoined scholars to explain the divine methods, because knowledge of a thing is before acting on it, The Allah said:

فَاعْلَمْ أَنَّهُ لَا إِلَهَ إِلَّا اللَّهُ وَاسْتَغْفِرْ لِذَنبِكَ

(So know, [O Muhammad], that there is no deity except Allah and ask forgiveness)

People are different in the need for knowledge, who has his money to know zakat from those who have no money, and it is not permissible to protest and defend ignorance in the house of Islam, which is the house in which the provisions of Islam are common. In the judicial system, Mufti, Musftai, Fatwa, and Case.

The single person does not have to learn the rulings on marriage, and the poor person does not have to learn the rulings of zakat, and it is stipulated that the questioner should not be diligent, and he must ask the righteous for fatwas, and he is the one who has knowledge of the legal rulings. Doctors’ censorship, and the Mufti is afraid to speak about Allah Almighty and does not pay attention to the pleasing of creatures because pleasing Allah is more important. According to some scholars, as in the time of al-Ma’mun, in the fitnah of saying that the Qur’an was created from the misguided, innovated Mu’tazila, and Ahmad ibn Hanbal’s refusal to keep pace with their heresy.

The Issue Of Adhering

What is required is to ask the people of knowledge verbally to the living, or to read the books of those who died among them. The Almighty said:

وَمَا جَعَلْنَا لِبَشَرٍ مِّن قَبْلِكَ الْخُلْدَ أَفَإِن مِّتَّ فَهُمُ الْخَالِدُونَ

(And We did not grant to any man before you eternity [on earth]; so if you die - would they be eternal?), Scholars and imams have ways to derive legal rulings, and they are sound ways, and I follow a mujtahid as a follower of evidence in a barren desert and he is not infallible. Criticism if the scholar has reached a great deal of knowledge and insists on following others while the issue is clear and for this reason more than one said (if the hadith is authentic, then it is my creed), and the ruling of Sharia is higher than the request for the ruling of the madhhab, and this request is corrected by the fact that the questioner believes that the doctrine of his imam is closer to correctness than Other than that, and the questioner should not be satisfied with the hadith, rather he must seek help from someone else, as stated by Imam Ahmad, may Allah Almighty have mercy on him.

The mufti has to examine the questioner’s condition, as he may ask to be tempted, like someone who asks about determining the ownership of agricultural lands for someone who wants to rely on the Sharia to implement the socialist system. His statement and the more serious the matter, the more clarification must be made, as in the issue of seeking help from the polytheist. If the mufti neglected this detail, it was obscure, and the Muslims asked the Prophet, peace and blessings be upon him, “What is the matter with the crescents” and the Qur’an answered them, “They are times for people…” He turned them to the purpose of this phenomenon as well. If it would be useful to point out a related issue, as in a hadith, a man asked the Prophet , peace and  blessings  be upon him, and said, “Oh, Messenger of Allah, we ride the sea and carry a little water with us. If we perform ablution with it, we are thirsty, should we perform ablution with sea water  ?”   The Messenger of Allah, peace and blessings be  upon  him, said, “It is pure water, its solution is its death,” and their question was about the purity of water only.

Inauguration Of The Mufti

Ibn Hazm, may Allah have mercy on him, said: The common people who do not have a mufti are transferred to another place, and al-Ghazali, may Allah have mercy on him, said that it is necessary to set up muftis.

Increasing And Decreasing Fatwas

The basic principle in this news about the ruling of Sharia is that it is proven and the hesitant fears if he does not make the effort, then he should be careful and precaution is praiseworthy. Moreover, this is a psychological matter. Some people have fear, so they have no risk and no risk that leads to many benefits, such as a diver who wants to be safe from drowning or damage, and someone who has money fears a slump in trade, so it is sufficient Buying real estate and this instinct binds every person to the world, and people differ in what they are inherent in (dreaming and patience) as a human nature, and there is a risk-taker who is confident in himself, and the circumstance in which the Mufti lives affects him as the availability of scholars encourages the reduction of fatwas.

Comparison Between Judiciary And Fatwa

First: The fatwa is more dangerous than the judge’s ruling because it is a general ruling that is not specific to the questioner. Rather, it is observed by all Muslims whose circumstances are similar to those of the questioner  .  (Its water is pure (and Purification) is general for everyone who rides the sea, and the judge’s ruling concerns the plaintiff only, and the Prophet, peace and blessings be upon him, has the capacity of a mufti, judge, and head of state. What is issued by him as a head of state may not be followed except with the permission of the Presidency of the state.

Example: On the authority of Aisha, she said: “Hind daughter of 'Utbah - wife of Abu Sufyan - came to Allah's Messenger (  ﷺ  ) and said, "O Allah's Messenger, Abu Sufyan is a miser who does not give me and my sons enough maintenance, except what I take from his wealth without his knowledge. Is there any blame on me for doing this?" He replied, "Take from his wealth what is reasonable and enough for you and your sons  .”

The scholars have said about that, including:

A- Whoever wins his right has the right to take it, even without the knowledge of the one against whom the right is proven, which is the Shafi’i school of thought.

B - There must be consent or the judge’s ruling, which is the Hanafi school of thought, based on the fact that this answer is specific and it is a judge.

Another example: On the authority of Saeed bin Zaid: On the authority of the Prophet, peace and blessings be upon  him    ,  he said: “The Prophet (  ﷺ  ) said: If anyone brings barren land into cultivation, it belongs to him, and the unjust vein has no right.  .”

In the revival, the Hanafis stipulated the permission of the head of state, because the ruling was issued in his capacity as the head of state to encourage the revival of the lands, and others say this as a matter of fatwa.

Second: The department of fatwa is wider than the judicial department that concerns (transactions outside of pure worship) and the reasons for worship. Moreover, the causes of worship do not fall within the authority of the judge, such as sighting the crescent moon. This is what is issued now and is not a ruling necessary for people. If a man does not take the testimony of one, he is not forced to Fasting, although the first to fast with people.

Third: The fatwa is not binding, and the mufti has no authority to implement the  fatwa,unlike the judge, so his fatwa is binding and enforceable.

Evidence is of two types:

Original: These are the texts of The Quran and the Sunnah.

Dependency: The texts of The Quran and Sunnis are guided by the guide to him, Allah said:

وَمَن يُشَاقِقِ الرَّسُولَ مِن بَعْدِ مَا تَبَيَّنَ لَهُ الْهُدَى وَيَتَّبِعْ غَيْرَ سَبِيلِ الْمُؤْمِنِينَ نُوَلِّهِ مَا تَوَلَّى وَنُصْلِهِ جَهَنَّمَ وَسَاءتْ مَصِيراً

(And whoever opposes the Messenger after guidance has become clear to him and follows other than the way of the believers - We will give him what he has taken and drive him into Hell, and evil it is as a destination.), The path of the believers is led by scholars, and so is analogy, and there is no ijtihad with the text because it is an empty effort. The benefit is either that it is silent or authorized, and that includes writing the books of books and writing the Qur’an, and there is blocking the excuses, which is to prevent the permissible act if it leads to corruption or harm despite its permissibility. The Almighty said:

وَلاَ تَسُبُّواْ الَّذِينَ يَدْعُونَ مِن دُونِ اللّهِ فَيَسُبُّواْ اللّهَ عَدْواً بِغَيْرِ عِلْمٍ

(And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge)

Based on that, it is not permissible for the people of heresy to attend their lectures, because it is an increase in their blackness, and from that every act that appears is sound, but there are evils in it, so it is forbidden, and Allah Almighty says:

وَلَا يَضْرِبْنَ بِأَرْجُلِهِنَّ لِيُعْلَمَ مَا يُخْفِينَ مِن زِينَتِهِنَّ

(And let them not stamp their feet to make known what they conceal of their adornment).

The act in its origin is permissible, but it is forbidden to block the pretext, which is a principle that complements the sent interest and custom stipulates that it does not violate the law.

The Origin In Contracts Or Conditions Is Permissible

Not every new contract necessitates his acceptance and his grandmother intercedes for him and the requirements of the age. We take them into account to the extent that they deserve to be observed, so we remove the cover from the contract and look at the face of the violation. It may be said about this embarrassment and narrowness. The answer is that Allah Almighty says:

وَمِنَ النَّاسِ مَن يَعْبُدُ اللَّهَ عَلَى حَرْفٍ فَإِنْ أَصَابَهُ خَيْرٌ اطْمَأَنَّ بِهِ وَإِنْ أَصَابَتْهُ فِتْنَةٌ انقَلَبَ عَلَى وَجْهِهِ خَسِرَ الدُّنْيَا وَالْآخِرَةَ ذَلِكَ هُوَ الْخُسْرَانُ الْمُبِينُ

(And of the people is he who worships Allah on an edge. If he is touched by good, he is reassured by it; but if he is struck by trial, he turns on his face [to the other direction]. He has lost [this] world and the Hereafter. That is what is the manifest loss).

Attention to finding a way out is not valid unless the matter reaches a point that the Sharia considers a necessity, and the meaning of necessity is: to have the choice between doing the forbidden act or perishing.

_PRINTER

Published on: 2015-02-16 (6196 Reads)