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Ray
22 Aug 06,, 19:40
‘Divide and rule’ through Hudood bill?



The PPPP is right when it says that the ruling PML has sought to divide the combined opposition by tabling its Hudood amendment bill one day before the tabling of the ARD-MMA no-confidence motion. If the PPPP supports the Hudood Bill, which it should because it too is opposed to the Hudood Ordinance, the MMA will be offended and show less enthusiasm for the no-confidence motion against the prime minister. The PMLQ is using low tactics reminiscent of Pakistan’s near past when MNAs were abducted and kept in rest houses to keep them loyal.

But the PPPP should also be chary of its newfound warmth for the clergy. If there is one party that the MMA wants out of the political equation it is the PPPP. As for the no-confidence motion, the MMA wants it as much as the ARD, so the PPPP must remain firm and support the Hudood bills. Let us not sacrifice the interest of the state for political tactics of dubious success. *
http://www.dailytimes.com.pk/default.asp?page=2006\08\22\story_22-8-2006_pg3_1


Tuesday, August 22, 2006 E-Mail this article to a friend Printer Friendly Version

Govt tables Hudood bill

* Body to see that changes conform to Quran
* MMA MPs tear bill

By Zulfiqar Ghuman

ISLAMABAD: The government tabled a Hudood amendment bill in the National Assembly on Monday and the house decided to set up a committee to examine whether the proposed amendments are in conformity with the Quran and Sunnah.

The Criminal Law Amendment (Protection of Women) Bill 2006 elicited strong objections from the Muttahida Majlis-e-Amal, whose legislators tore up copies of the bill and shouted slogans against it. “We reject this bill,” Opposition Leader Maulana Fazlur Rehman said and handed his copy back to the speaker. The Pakistan People’s Party Parliamentarians did not join a token MMA walkout to protest against the bill. Treasury members reacted angrily to the tearing up of the bill, accusing MMA legislators of “desecration” because the bill contained several references to the Quran and Sunnah.

Maulana Fazl claimed that Chaudhry Shujaat Hussain, president of the ruling Pakistan Muslim League, had voiced opposition to some of the proposed amendments in a phone conversation with him.

Mr Hussain denied this and demanded that the opposition leader produce evidence to back up his claim, but Maulana Fazl had none.

“It (Hudood Ordinance) is a man-made law. We will not pass any law which is not in conformity with the Quran and Sunnah,” Mr Hussain said, drawing a round of applause and desk-thumping from treasury members. Prime Minister Shaukat Aziz personally monitored the session.

The speaker asked all parliamentary parties to nominate two members each for a meeting with him today (Tuesday) to decide the composition of the committee which will examine the bill. The decision to form the committee was taken with consensus so that all political parties are represented in it.
http://www.dailytimes.com.pk/default.asp?page=2006\08\22\story_22-8-2006_pg1_5


Could someone explain this?

I believe a vast majority of Pakistanis, at least the educated ones, want the Hoodooed out of the scene. There has been repeated clamour to do so and there has been repeated attempts to do so.

Once again it is being tried, but as usual, some political chicanery is afoot, more so because the elections are looming across the horizon.

What does one feel? Will this Bill go through? What will the current wrangling mean in terms of the political scene (check the Divide and Rule quote)?

It has been repeated in the forum by Pakistani members that a vast majority of Pakistanis are modern and forward looking. I would like to believe that since I think that may be true. This Hoodooed stuff sort of tarnishes this image.

I do hope that his Bill passes for the sake of the emancipated of Pakistan and for the image of Islam!

Ray
23 Aug 06,, 09:03
MMA up in arms over women’s rights bill: • All-party select committee proposed


By Raja Asghar

ISLAMABAD, Aug 21: A government bill seeking to protect women from misuse of Islamic Hudood laws met a tearing resistance from its bitter opponents on Monday when it was tabled in a chaotic National Assembly and later referred to an all-party select committee for scrutiny.

The Muttahida Majlis-i-Amal (MMA) alliance of six Islamic parties rejected the bill as “un-Islamic”, vowing to resist it inside and outside parliament and many of its members tore up copies of the draft after it was introduced in the house by Law and Justice Minister Mohammad Wasi Zafar.

In a clear show of differences between the major opposition parties on the issue, the People’s Party Parliamentarians (PPP) won approval of the ruling coalition for its proposal to refer the Criminal Law (Amendment) (Protection of Women) Bill to a larger select committee representing all parliamentary groups in the house rather than a usual standing committee.

The MMA staged a token walkout in protest after the house majority voted for the proposal along with the Pakistan Muslim League-N, while Pashtunkhawa Milli Awami Party chief Mahmood Khan Achakzai and PPP member Abdul Mujeeb Pirzada joined them to follow the unity pledge of a combined opposition committee drafting a no-confidence charge-sheet against prime minister Shaukat Aziz.

Speaker Chaudhry Amir Hussain asked all parties to give names of their two members each for the select committee by 9.30am on Tuesday before he adjourned the noisy proceedings that were also marked by angry exchanges between members on the two sides of the political divide and opposition calls for the prime minister to resign when he came to the house.

The bill seeks amendments in the Offence of Zina (Enforcement of Hudood) Ordinance and the Offence of Qazf (Enforcement of Hadd) Ordinance of 1979 as well as the Pakistan Penal Code, the Criminal Procedure Code and the Dissolution of Marriages Act of 1939 to provide what it calls “relief and protection to women against misuse and abuse of law and to prevent their exploitation”.

It says its objective is also to “bring in particular the law relating to zina (rape and adultery) and qazf (false allegation of zina) in conformity with the stated objectives of the constitution and the injunctions of Islam”.

The two hudood ordinances about zina and qazf are among the four decrees enforced in 1979 by then military ruler General Mohammad Zia-ul-Haq as part of his controversial Islamisation programme — the other two being about theft and drinking.

The amending bill could not be introduced on Friday because the ruling coalition could not collect enough members to make a quorum of one-fourth, or 86 members, of the 342-seat house. But Monday’s sitting was unusually well-attended by both the ruling coalition and opposition parties, though it seemed it was the work of more than the normal parliamentary whip to collect so many members of the ruling Pakistan Muslim League (PML) and its allied parties.

“Go, go” and “resign, resign”, opposition members chanted as the prime minister entered the house in the early stages of the sitting when some opposition members had tabled identical privilege motions about what they called a wrong statement made in the house by a minister about a recent alleged detention of a woman journalist in Leyyah town of Punjab.

The select committee proposal came first from PPP secretary- general Raja Pervez Ashraf and was later endorsed by party chief Makhdoom Amin Fahim, who spoke between unusually angry exchanges between PML president Chaudhry Shujaat Hussain and opposition leader and MMA secretary-general Maulana Fazlur Rehman.

The Maulana called the bill “contrary to Quran and Sunnah” as he announced its rejection by MMA which, he said, would resist the move inside and outside parliament and accused the PML chief of not keeping a promise to discuss the matter in a broad-based joint committee of ruling and opposition parties before bringing a bill to parliament.

Chaudhry Shujaat acknowledged his contact with the MMA leader and offered apologies for any lapse but assured the house that he would not support the draft if it were against the Quran and Sunnah though he would support it if it sought improvement in a man-made law.

Several ruling coalition members protested against the MMA Members’ action of tearing up the copies of the bill and throwing its pieces around the hall.

A statement of objects and reasons accompanying the 30- clause bill says that the primary object of amendments was to “make zina and qazf punishable only in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah, prevent exploitation, curb abuse of police powers and create a just and egalitarian society”.

It said while the offences of zina and qazf were mentioned in the Holy Quran, the two 1979 ordinance relating to them made a number of other act punishable although the Quran and Sunnah neither defined these offences nor prescribed any punishment for them.

“On no principle of qiyas can the punishments for zina and qazf or the procedure identified for their proof can be extended to these offences,” it said.

It said any offence not mentioned in the Quran and Sunnah or for which “punishment is not stated therein is Ta’zir which is subject to state legislation”. “Accordingly, all these offences have been removed from the two Hudood ordinances and inserted in their proper places in the...PPC,” it said.

The statement said no change had been made in the language of the statutory definition of any of these Ta’zir offences or the punishment for them, except the deletion of the punishment whipping.

It said the definition and punishment of rape was being incorporated in the PPC because there was no “hadd” for the offence of zina-bil-jabr (rape). “The gender neutral definition is being amended to clearly provide that rape is an offence committed by a man against a woman. As consent of the woman is a defence to the charge of rape, it is being provided that such consent would not be a defence if the woman is less than 16 years of age

Ray
23 Aug 06,, 09:08
ISLAM AND THE AGE OF PUBERTY

Islam teaches that female puberty begins when the menses is started. From Bukhari, volume 3, Book of Witnesses, chapter 18, page 513: "The boy attaining the age of puberty and the validity of their witness and the Statement of Allah: "And when the children among you attain the age of puberty, then let them also ask for permission (to enter)." Quran 24:59. Al Mughira said, "I attained puberty at the age of twelve." The attaining of puberty by women is with the start of menses, as is referred to by the Statement of Allah: "Such of your women as have passed the age of monthly courses, for them prescribed period if you have any doubts (about their periods) is three months... [65:4] ...Al-Hasan bin Salih said, "I saw a neighbouress of mine who became a grandmother at the age of twenty-one." [1] [1] The note for this reference says, "This women attained puberty at the age of nine and married to give birth to a daughter at ten; the daughter had the same experience." My understanding of the above is that Islam considers that when a child "attains", or begins, "puberty", then he / she is considered an adult. Hence the validity of the witness. Muhammad followed a cultural norm in marrying and having sex with a young girl. After all, she was considered an adult. Not only did he do that, but he taught his followers to do as he did. Therefore is acceptable for Muslim men to marry and have intercourse with girls who have had their menarche. Muhammad established this cultural practice as a precedent in Islam.http://www.exmuslim.com/com/puberty.htm



Now if this is correct, then it would the contention that consent would not be a defence for rape is the woman is less than 16 years of age?

Would it be not going contrary to the tenets?

Could it be taken that if this contention of 16 years is legalised it would mean ijtihad has been practiced?

Ray
23 Aug 06,, 09:12
IJTIHAD (JURISTIC REASONING)


Ijtihad and a Divine Law:

A law (hukum) based on Islam can he defined as divine legislation or Shari'ah which organizes human life and his divers relations. (Ijtihad is the process practised by a jurisprudent to discover secondary divine legislation (laws) regarding the organizing of human life and his diverse relations or endeavouring to discover and deduce the Islamic laws and regulations from their sources like the laws concerning worship, possession, business, property, judiciary, politics and family affairs...etc.)

Ijtihad is a learning (knowing) process and has a important, progressive and civil role in the life of an individual and the society altogether with the state. It also participate in developing the civil life and opening the legislative prospects before it. Without the process of Ijtihad, many human activities are difficult to develop in the sphere of an Islamic life.

Human society is a developing entity. Human actions, relationships and activities are ever-increasing and ever-expanding. Many things are invented that were non-existent before. Banks, insurance companies, radio and television and the other discoveries are new phenomena which are to be used correctly and in harmony with Islamic teachings. If there are no fuqaha' (jurisprudents), how could codes and regulations concerning such institutions be derived at?

This process of Ijtihad is responsible for catering to all the needs of the human society and providing answers to all questions which may arise in this field. Without the process of Ijtihad, a faithful Muslim will find himself in a dilemma.

The First Attitude: To petrify, solidify and isolate every new development in life because he has no knowledge concerning his legal responsibility or duty and the ambiguity of such special legislative laws concerning new affairs in human life...

The Second Attitude: To dissolute from any legal responsibility or obligation and dissolve absolutely in a non-Islamic civilization and principles; to take laws and concepts and specify situations and behaviour by depending on non-Islamic civilizations, principles and ideologies.

In both cases, the attitude will be a tragedy against the dynamic goals of Islam and to stop the spread of the ever-lasting Divine Legislation.

Besides these two attitudes, another attitude which is more dangerous than the two, the idea that Islam is incapable of establishing a developed society and international entity for the Muslim nation and which puts obstacles in its path of progress, which in other words would mean the absence of Divine Mercy and Kindness from the world of mankind and to leave it in disorder and chaos. All these are against the aims of Islam and which contradict the spirit of Shari'ah and the principles of the ever-lasting Islamic Message as the Holy Qur'an and the Prophetic sunnah.

The Most High says:

"...and We ban reveal the Book to you explaining all things, and a guidance and mercy and good news for those who submit."

Holy Qur'an (16:89)

A holy tradition (hadith) says:

"Almighty Allah has revealed in the Qur'an the declaration of all things. He has not left anything needed by His servants unexplained so that no one would say: if (only) this has been revealed in the Qur'an. Yes indeed He has revealed it."[7]

Imam al-Sadiq (a.s.) describes the nature of the Islamic message in the following words:

"The Qur'an is certainly alive and does not die. It moves as the night and the day, and as the sun and the moon. Its teachings should be obeyed by the last man on earth as it had been obeyed by the first one."[8]

By contemplating on these Islamic texts, one realizes that the Qur'an is the origin of Islam; the source of its message; a vehicle for its laws, principles and concepts and a torch which sends the rays of guidance on the planet more brighter or serene than the sun and the moon.

But it is not in our capability nor any one else to understand (realize) life perfectly through the Qur'an nor to discover the laws of life and the Islamic laws from the treasures of this Book (the Qur'anic verses are treasuries, whenever a treasury is opened, you should look at it).[9]

This richness of laws and the large ideological wealth which the Qur'anic verses contain need scientific efforts and an ideological declaration capable of drawing from this inexhaustible spring and meet the future needs from these unfathomable treasuries.

It is natural, that to comprehend the deepness of the Qur'an with its legal proof is not clear nor specified in every situation and affair and it is not in the capacity of a jurisprudent (Faqih or Mujtahid) to take this responsibility in the first grade. But it was the task of the Minister of Revelation (Prophet Muhammad (s.a.w.) to comprehend and expound the spirit of the Book; to interpret its meanings and to formulate its laws and practical legislation in life under Divine Guidance.

Thus the relation between the two - the Book and the sunnah - looks like to a great extent the relation between a constitution and a law.

The constitution makes clear the essential origin of legislation and prescription of law. For instance, the clause speaks of the right to own property, but it is the law-maker which clarifies its details, and drafts the laws necessary for practical execution of this constitutional article and declaration of its details.

In like manner, the task of the Prophetic traditions sunnah is to translate the contents of the Qur'an and formulate them as practical laws for life.

For more details, it is worth mentioning that the sunnah is not a Prophetic judgement for formulating the Qur'anic spirit and explaining its contents through laws as the case in the relation between the constitution and law.

The sunnah is a Divine revelation and instruction both in its meaning and contents save that its literary pronunciation and form is said by the Messenger of Allah (s.a.w.) himself.

For example, the Holy Qur'an ascribes (determines) that the paying of the poor-dues zakat is obligatory but without clarifying its amounts or quantities nor the things on which it should be paid. But it is the Prophetic Tradition sunnah which looks after it by explaining it in detail. This explanation and detail has come through the utterance and practise of the Noble Messenger and his human normal speech. In order to continue the advantageous role of the sunnah, Allah willed that it should have leaders (Imams) after the Prophet who represent the conscious side and comprehend the spirit of the Qur'an and its contents in accordance with the Prophet's practice.

Therefore, the Imams of the Prophet's infallible Household, the Ahlul-Bait (peace be upon them all) represent the blessed path of guidance for the ummah. After them comes the role of the Jurisprudents (mujtahids or fuqaha') who undertake the task of judgement by reasoning in the light of the Qur'an and the sunnah to meet the changing needs of the human society. Thus, the dynamism of Ijtihad which is wide open till our present day, was necessary to expand the horizons of the Shari'ah and to enrich the human society with concepts and laws which are necessary for organizing the progress of mankind.

Therefore, Ijtihad is necessary wajib kifa'i and there should at least be a Mujtahid, in every age and era, to whom Muslims refer and upon whom they depend for understanding the Shari'ah and discovering its laws.

Islam has two main sources:

A- The Book (The Qur'an).
B- The Sunnah (The Prophetic Tradition).

It is only in the light of these two sources that laws should be made. The tragedy of Muslims, is, certain persons took fallible sources besides these two, and on the basis of their whims and personal opinions qiyas imposed themselves on unsuspecting and simple-minded Muslims as Imams or leaders of schools of Jurisprudence.

Later on, the ruling Abbasid Caliphs, who were total strangers to Islam and its teachings arbitrarily sanctioned the legitimacy of four self-contradictory schools of jurisprudence on the Muslims, ruling that the door of Ijtihad was closed.

But in Islamic Shari'ah, it is not necessary to accept these sources (the sources of qiyas and the like to which certain Mujtahids depend other than the Book and the Sunnah) except what tallies with the spirit of the Book and the sunnah. However, the followers of the schools of the Prophet's Ahlul-Bait, have always stayed clear of these innovations and kept the dynamism of Ijtihad open on the basis of the Book and the sunnah. Therefore, it is the duty of a rightly guided mujtahid or faqih cancel in all periods any of these sources which contradict the Book and the sunnah or bold no water before a scientific justification.

How does a Jurisprudent (faqih) practise the Process of Extrapolation:

Most Muslims are ignorant with the meaning of Ijtihad and some even believe that the process of Ijtihad is related to a certain class of religious men (scholars) because of their religious position as is the case with the post of a pope in a church. Some also think that all laws of jurisprudence and legal opinions are only personal views of a faqih (Jurisprudent) who decides and appreciates laws according to his own judgements or justifies the events and accidents and an answer for certain considerations at random.

Certainly this kind of understanding represents the ignorance with Islamic law (Shari'ah), Jurisprudence and Ijtihad.

In Islam, both Jurisprudence Fiqh and Ijtihad have no relation with any personal opinion or qiyas.

Ijtihad is a complete scientific practice as defined before and has its own sources, proofs, principles, methods and precisions like all other fields of science and human knowledge such as logics, physics, mathematics...etc.

As the logician, physicist and mathematician, in their respective fields, cannot coin laws or devise formulas from themselves at random, so does the true jurisprudent faqih who is also not able to draft or frame any law from himself because the nature of Shari'ah and its lawful and ideological structure (constitution) not only does not allow him to do that but also stands against those who forge or play with its laws.

Thus, any law which lacks proofs and principles from the Book and the sunnah and contradicts these scientific regulations is not an Islamic law, but is simply the low desire of that law maker against the spirit of the Shari'ah in order to deceive simple people.

Why do the Jurisprudents (Fuqaha') differ:

Many people wonder why it is that the mujtahids differ at times in their fatwas, when the basis of their Ijtihad are the same. It should be observed that difference in scientific opinions is not to be taken as a sign of a substantial defect in the quest for knowledge. It is rather, a sign that knowledge moves in progressive steps towards perfection. Differences of opinions are to be found in all sciences, not just in fiqh.
There may, for example, be more that one opinion about the therapy for a particular patient's ailment, and all of these opinions may be superseded later on by the development of new methods of dealing with that malady. Thus, this difference can be seen in the light of difference between scientists and should be regarded as stages to be passed in its route to perfection.

It should be remembered that the mujtahid formulates his opinions after pushing his research and study as far as he can; that is all that is expected of him, for he is neither infallible nor the knower of the unseen.

The most important and dangerous question which remains unanswered is that why do the mujtahids differ among themselves in their religious opinions concerning an issue while there is one Shari'ah and its laws are one? Or why do the mujtahids' religious opinions differ concerning one subject?

To answer the question, we should differentiate between the two cases: the case in which the differences are founded on sound bases and lawful practice.

The second case is that the differences are made out of extemporaneous Ijtihad which is not founded on a sound base nor is scientific according to the spirit of Shari'ah and its sources.

The first difference is a natural result of a sound scientific reasoning and the mujtahids are excused for any short comings nor could they be punished on the day of Resurrection because their intention was sincere. It is the second case or difference which is neither Ijtihad nor Fiqh but it is a haphazard act against the spirit of Shari'ah and its principles, and the person responsible and his blind followers will be held responsible on the day of Resurrection.

The science of jurisprudence - as we explained - is similar to other sciences and human knowledges. As each of these sciences has its own rules, principles, the Islamic Shari'ah has its own principles and laws too.

As the physicist, in the previous example, tries to spend all his scientific efforts to discover laws related to physics within the framework of its nature, existence; or the logician who devotes all his efforts to discover the laws of thinking according to its intellectual basis, and it is not for them to coin laws of their own on mere fancy; so does a mujtahid (faqih), who has no ability or right to make laws and principles in a haphazard manner, and then try to legitimatize them. If anyone has dared to do this, then his laws should scientifically analyzed on the basis of the Qur'an and the sunnah.

The same idea is applied to a physicist and logician who sometimes makes a mistake in discovering scientific laws and rules and that this wrong discovery does not represent the true law of physics and logics but it represents the understanding of a scientist who made a mistake in identifying the law. The case is the same concerning the faqih who may sometimes make a mistake while practising the act of deriving Islamic laws from their original sources - the Book and the sunnah - but his mistake is not done blindly and at random but due to his insufficiency or inadequacy in his scientific tools or his self capacity which causes him to be unable in deriving legal law as it is formulated in the world of law and a divine Shari'ah.

This is the reason why the faqih is excused when he makes a mistake in arriving at the right law.

The main differences, whether being among the mujtahids of various Islamic schools of jurisprudence such as Hanafi, Shafi'i, Shi'ah, Maliki...etc. or among the mujtahids of one school, belong to the following reasons:

1- Linguistic difference concerning some texts of the Holy Qur'an and Prophetic traditions due to the difference in grammar, meaning or in reading which leads to the difference in understanding and formulating laws. For example, their difference in the following verse of ablution when the Almighty Allah says:

"O you who believe, when you rise up for prayer, wash your f aces, and your hands up to the elbows, and wipe your heads, and your feet up to the ankles. And if you are under an obligation, then wash (yourselves)..."

Holy Qur'an (5:6)

Whoever among the scholars considers the word 'feet' grammatically is joined to 'faces', makes its washing obligatory and whoever considers the word 'feet' as joined to 'heads' makes its wiping obligatory.

Or their difference in the meaning of 'quru" in the Almighty's saying:

"And the divorced women should keep themselves in waiting f or three monthly courses (quru');..."

Holy Qur'an (2:228)

Scholars (faqihs) differ among themselves concerning the linguistic meaning of the word 'quru"; some consider it as the period of cleanness (tuhur) while others explain it as period of menstruation (haydh). Each of these two opinions depend on their own linguistic interpretation or understanding because the word 'quru" in Arabic language is called for both the period of cleanness (tuhur) and the period of menstruation (haydh).

In accordance with this linguistic difference, scholars differ among themselves in waiting period of a divorced woman; is it three periods of cleanness - after divorce - or is it three complete months because what is meant by 'quru" is the period of menstruation (haydh) because the word haydh is a symbolic name for woman's monthly period by considering it as a monthly period which occurs once every month.

Another example, is (heir difference in reading the Almighty's saying 'hata yatharna' (until they have become clean) in the following verse:

"And they ask you about menstruation. Say it is a discomfort; therefore, keep aloof from the women during the menstruation and do not go near them until they have become clean; then when they have cleansed themselves, go in them as Allah has commanded you; Surely Allah loves those who turn much (to Him), and He loves those who purify themselves."

Holy Qur'an (2:222)

Whoever reads the word 'they have become clean' as stressed, does not allow to make sexual intercourse with women during the period of menstruation until they have become clean (i.e. to take the ritual bath) but whoever reads it without stress allows to make sexual intercourse with her whenever cleanness is achieved (i.e. the stopping of blood).

Or their difference concerning whether the command denotes (signifies) obligation or permission; whether a prohibition indicates prohibition or reprehensibility; whether the word denotes reality or figurative or their difference among the texts like generalization, restriction, universality or specification...etc.

2. The difference concerning the meaning of a text (of the Book (Qur'an) and the Prophet's sunnah). Indeed scholars may differ in their understanding the signification of a text and its meaning like their difference in the following saying of Allah, the Most High:

"Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with kindness..."

Holy Qur'an (2:229)

"So if he divorces her (the third time), she shall not be lawful to him afterwards until she marries another husband. If he divorces her, there is no blame on them both if they return to each other (by marriage),..."

Holy Qur'an (2:230)

Surely the reason of difference in understanding Allah's saying (divorce is twice) is the appearance of jurisprudential laws based on personal opinions, with some ruling prohibition of a wife to her husband if he divorces her three times by simply saying that 'you are divorced'; depending on his understanding of the above mentioned verse (divorce is twice). At the third time, after passing a greater separation, he has no right to marry her until she marries another husband and if the new husband divorces her, then only the first husband has the right to marry her after completion of her monthly waiting period.

But another group explains the Almighty's saying (divorce is twice) that divorce should be achieved practically but not simply orally in order that a wife becomes forbidden to her husband. The Holy Qur'an does not mean merely the repetition of word (verbal) but it means the real occurrence of the permitted divorce in which the wife returns to her husband's house twice. As a result, if a third divorce occurs, she becomes haram (forbidden) for him to remarry. For more explanation, if the husband divorces his wife, he has the right to marry her again; if she returns and he divorces her the second time, he also has the right to take her back but if she returns and he divorces her for the third time, she becomes haram for him to remarry unless all the following conditions are fulfilled:

a. She permanently remarries another man.
b. The wife and her second husband have sexual intercourse.
c. The second husband either divorces her or dies.
d. She completes her waiting period (iddah) for the second husband.

3. The difference whether some laws are repealed or not, for example their difference regarding the law of temporary marriage (mut'ah).

4. The difference caused by accepting or rejecting certain narrations or traditions. Scholars after a thorough scientific analysis of chain of transmitters, accept or reject a tradition.
Traditions which contradict the Qur'anic concept or a proved Prophetic tradition, are normally discarded as spurious. If the sources or the chain of transmitters are sound and the wordings in conformity with the Qur'an and the sunnah, then the tradition is as accepted as satisfactory.

5. The difference in considering the validity and invalidity of some of these sources and how to make use of them, such as: analogy, approbation, intellectual proofs, and consensus of opinions.

Some scholars depend on some of these sources in formulating laws while others refuse to do so pointing out the drawbacks of these sources.

Thus, this is the main reason behind the difference among the scholars of Islamic schools and the followers of opinion. Therefore, it is necessary to submit all disputed independent reasoning opinions among the Muslims to a thorough scientific criticism in order to remove the clouds of personal fanaticism and bigotry, and arrive at the ultimate truth keeping in the mind the aims of Islamic Shari'ah in reforming and uniting the Muslim communities.

Objective Statutes (Regulations):

At the end of this research, it is useful to point out the main principles which serve as necessary conditions in the process of juristic reasoning (Ijtihad). Among them are the following:

1- Certainly, the Book (Qur'an) and the Prophet" tradition (sunnah) are two main sources in formulating Islamic laws.

2- No one has the right to give his own Ijtihad in any case whenever there is a legal law in the Book of Allah and the Prophet's sunnah.

"...And whatever 'he Messenger gives you accept it, and whateve he forbids you, abstain (there from);...)"

Holy Qur'an (59:7)

3- Only one judgement for one subject falling under the same circumstances and conditions, and which represents the pure legal opinion.

Therefore, in the process of juristic reasoning (Ijtihad), one should distinguish between aim and its result. The aim is to arrive at the truth and discover a true law. i.e. one law for the same subject but sometimes one finds the jurists having various laws for the same subject.

This does not mean the correctness of all ideas. Thus the truth of formulating of law depends on the soundness of the juristic reasoning or the system of Ijtihad and its sources. Therefore, not every source or method of reasoning is sound or has the capacity to formulate the right law.

4- The laws discovered by the faqih are only estimated but not final and should therefore be subjected to scientific discussion and strict legal scrutiny.

5- As a result of the previous point, we should understand that the process of juristic reasoning is a critical one in which discovered opinion undergoes a thorough accurate criticism, and evaluation in order to arrive at the correct law. No juristic reasoning could be considered sound if it is not subjected to criticism and scientific discussion.

6- Juristic reasoning should be pure and free from any fanaticism or internal and external factors such as political and sectarian tendencies and should be capable of withstanding scientific analysis and criticism. Therefore, Ijtihad is a scientific process based on research and inquiry.

Who is a Jurisprudent (Faqih):

As it is not in one's capacity to discover laws concerning physics and logics unless one is well acquainted with; the same idea can also be said concerning Ijtihad and formulating Islamic laws.

In order to be Faqih, one should be able to discover secondary legal laws from their original sources including the Holy Qur'an and the pure Prophetic tradition and other sources. In other words the Faqih is a person who has the greatest expert in deriving the rules of the Shari'ah from their sources. He should be familiar with Arabic language to an extent that he understands the Qur'an and the sunnah both linguistically and legally and which fits the spirit of revelation and the Message.

He should be absolutely well-acquainted with the Holy Qur'an and its sciences to an extent which enables him to understand and discover legal laws and judgements.

He should be well-versed with the Prophetic tradition to the extent he should distinguish true and satisfactory hadiths through studying them and their chain of transmitters in addition to his understanding of the sunnah and its circumstances and having the ability to discover laws which go with the Qur'anic concepts.

Among the qualities necessary for a Faqih is his being acquainted with what other scholars discover in their studies and sciences which help him in organizing and comprehending the jurisprudential thought and deepening the procedure of Ijtihad (exercising of independent judgements) like the science of principles of jurisprudence» dogmatic theology, logics, philosophy, jurisprudence...etc.

Thus, the experts (fuqaha') of Shari'ah today upon whom Muslims depend for laws as did those before them, are the most excellent example in science, comprehension, and legislation.

Another important qualification which should be found in the Faqih (mujtahid) is faithfulness, loyalty, honesty, integrity, objectivity because he is the seeker of the truth and the one responsible before the Almighty Allah concerning his judgements, and legal rulings.

He should also be well known for intelligence, literary taste, an accurate comprehension manners and ability of discovering and extraction in order to practise his responsibility successfully and precisely.

Consequently, Ijtihad and its distinguished experts and scholars are those who spend all their efforts and abilities sincerely in order to supply instinctive knowledge of Ijtihad and the skill of discovering the laws.

In addition to this, Islamic law lays down that a mujtahid should be a free man and of legitimate birth who is past the age of puberty, and is sane, and just besides possessing other moral and legal qualities, such as piety and abstention from all that the Shari'ah forbids and fulfillment of all its obligation.

However, it is sometimes difficult to distinguish the most learned among the mujtahids and as a result more than one mujtahid may be followed in taqlid at one time (though not, of course, by the same person), as is the case at present, but any such multiplicity does not result in any practical disagreement on legal matters among the followers of the school of Ahlul-Bait.

What is Taqlid:

Taqlid literally means 'to follow or imitate'. In Islamic legal terminology it means to follow a mujtahid or faqih in religious laws and commandments.

In our everyday life we follow and imitate others in many things. We like to feel that we are taking the advice of experts in matters outside our own knowledge. Whoever wants to build a house explains the basic idea of of his wishes to his builder and then submits to his advice as to how he should go about the actual construction; the invalid follows the treatment advised by his doctor; a litigant consults a lawyer, when drawing up his case for presentation in court. The examples are abundant; in most cases the advice is taken voluntarily, but sometimes the citizen in a country may be required by law to seek his expert's advice and act upon it.
For example, he is allowed to take some particularly dangerous drug. The clearest example is obviously in case of a legal dispute between two parties, where they are required to take their grievance to a judge and abide by his decision if they cannot settle their dispute amicably. The practice of taqlid is an example of the same kind: the person who is not an expert in jurisprudence is legally required to follow the instructions of the expert, i.e. the mujtahid.

The Holy Qur'an instructs Muslims to seek guidance from the people of learning in matters about which they lack knowledge: "Question the people of remembrance if you do not know."(21:7)

It is an obligation in Islamic law to study everything which is necessary for the spiritual and material development and well-being of an Islamic community, but it is an obligation which is known as a Wajib Kifa'i. In the present instances, for example, the Islamic society has need of experts in the medical science, in physics, chemistry, engineering, education, and so forth, and as long as there is a lack of knowledge in these areas. It is an obligation for the community as a whole to acquire it, i.e. a group of Muslims should devote themselves to research so as to benefit the Islamic people as a whole. Similarly, an Islamic society without experts in the field of Shari'ah cannot properly consider itself Islamic, and so it is an obligation for a group of persons from the same society to devote themselves to the study of the religious sciences, so as to provide divine guidance for all Muslims.
This is the meaning contained in the Qur'anic verse which says:

"...why should not then a company from every party of them go forth that they may acquire (proper) understanding in the religion, and that they may warn their people when they return to them, that they may beware?"

Holy Qur'an (9:122)

Through the research, it became obvious for us that every act (deed) a man does or a situation in which he stands or anything with which he deals with should be according to a legal law of Islam.

It is also obligatory for every Muslim to be familiar with Islamic laws and decrees which organize man's activity and movements including performance of rituals and business dealings...etc.

It is obligatory for every Muslim either to be a mujtahid or to follow a particular mujtahid who is well-qualified in giving verdicts and acts according to his rulings and thus performs his duty, organizes his activity and affairs related to him. The process of depending upon the mujtahid's religious rulings in performing one's religious duties is called Taqlid.

So taqlid is the relation of Islamic sciences between a mujtahid and the followers of his legal rulings. And it is a necessity which must be practised by the one who is not qualified as faqih or who has not reached the degree of Ijtihad. As long as this practice needs an expert (a mujtahid) in jurisprudence and Shari'ah, it becomes necessary to rely on him (the mujtahid) and ask of him whatever difficulty we face in Islamic jurisprudence in the same manner as we depend on a doctor, pharmacist, an expert in other sciences in which there is such need to consult them because of their knowledge in this domain concerning what should be done and what should be abstained from.

Therefore, it is obligatory for every mukalaf, to follow a mujtahid who is well-qualified in delivering verdicts in order to be able to act and practise according to the Creator's Will and Guidance.

Praise be to Allah, Lord of the worlds.

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