The doctrinal doctrinal tradition has maintained its authority and presence over centuries, and it has been able to absorb developments according to the mechanisms of each jurisprudential doctrine separately, but since the end of the 19th century, the techniques of doctrines in adapting to changes are no longer able to accommodate them (as it emerged from the mufti of those doctrines at least), So the departure from adherence to one school of thought began to the choice of the four schools of jurisprudence, then the legislation of personal status laws based on one doctrine began to quote from other schools of thought out of interest;

It also occurred in Syria, Tunisia and Iraq since the mid-20th century.

In the face of these changes, the symbols of the Islamic reform movement found it necessary to open the door to ijtihad and break with tradition. Numerous fatwas appeared on emerging issues by Muhammad Abdo (1905 AD), Rashid Rida (1935 AD), Mustafa Al-Maraghi (1945 AD), Abdel-Wahhab Khalaf (1956 AD), and Mahmoud Shaltout ( 1963 AD), Muhammad Abu Zahra (1974 AD), Abd al-Rahman Taj (1975 AD), Ali al-Khafif (1978 AD) and others, and the fatwas of individuals have increased greatly in the subsequent decades.

However, the crowding of developments and the complexities of reality prompted the emergence of the idea of ​​“collective ijtihad”, and several academies have arisen since the seventies of the twentieth century, the most prominent of which are: the Islamic Fiqh Academy in Makkah, which was established in 1977 AD, the International Islamic Fiqh Academy, which was established in Jeddah in 1984 AD, and the Islamic Organization for Medical Sciences, which It was established in 1984 AD in the context of the emergence of the field of "Medical Ethics" and after the completion of the first birth through artificial insemination (1978 AD), which gave rise to a feeling that there are ethical challenges that must be faced in Islam.

The practice of jurisprudence in classical times dealt with developments by diligence in them through one of two methods:

The first: Al-

Takhrij or analogy with analogies and analogies from the branches that were stipulated by the imams of the madhhab, i.e. searching for a similar or analogous to the emerging issue and then carrying it on it so that it takes its ruling;

for likeness.

The second:

Deduction from the legal evidence (the various sources of legislation) according to the rules of the Imam of the school of thought and its origins in deduction.

However, the changes of modern times have confused the contemporary jurists, and this confusion has emerged through the stopping of some of them from issuing a fatwa in several incidents, as we find in the suspension of Sheikh Abdul Aziz bin Baz and others on the issue of artificial insemination (in 1985 AD), and the postponement of making a decision on a number of the issues investigated. This was repeated in various issues in the Mecca and Jeddah councils, as in artificial insemination, genetic fingerprinting, determination of the sex of the fetus, genetic engineering, and so on.

The confusion is due to the magnitude of changes that jurists or the mufti of the sect can no longer deal with, on the one hand, as they represent the mechanisms of the traditional sect, and on the other, on the one hand, their awareness of reality and its changes. and take a stand.

This contemporary ijtihad meant departing from the jurisprudential tradition and its hierarchy (there are ranks for adherents to the sect). Problems, calamities, and emerging issues based on the credible sources of Islamic legislation.” The International Islamic Fiqh Academy in Jeddah defined its job as “examining emerging issues, according to an opinion that relies on the strength of the legal evidence, and is concerned with achieving the considered legitimate purposes.” As for the Islamic Organization for Medical Sciences, it was concerned with bringing doctors and muftis together and for the first time, doctors were involved in the fatwa process. Therefore, we are in front of expanding the limits of jurisprudential consideration and its sources beyond what the doctrinal doctrinal tradition has historically allowed.

This direct return to the evidence and the practice of jurisprudence differed from one person to another, and from one council to another. The Mecca Council is dominated by the Salafi trend, even if it included some jurists from the rest of the Sunni sects. As for the Jeddah Council, it is derived from the Organization of the Islamic Conference, which represents all Islamic countries, including Iran. Shiites, it takes an official political character, while the medical organization gathered a diverse group of doctors and jurists of different directions. The muftis and the councils did not care about explaining their methods in the fatwa, and the councils in particular included personalities of different tendencies and tendencies, which may make it difficult to return the results to one approach.

However, two main courses of contemporary ijtihad can be observed in calamities in general, which are: the path of grading or analogy, and the path of the purposes of Sharia and the general rules. In a published long scientific study, but I will confine myself here to a summary of the two approaches followed:

An example of the conduct of graduation or analogy is the prohibition of permanent sterilization of women by analogy with the prohibition of castration;

Because both of them cut off offspring, and the permissibility of dissecting dead bodies is measured against the permissibility of slitting the abdomen of the dead pregnant woman to extract her fetus whose life is hoped for, and the permissibility of slitting the abdomen of the dead to extract the usurped money that he swallowed.

1. Graduation or measurement path

The analogy is the method that the diligent jurists took to find out the rule of what was not mentioned in a text from the Qur’an or the Sunnah of the Prophet. Within a general text in which the "Mujtahid of the school of thought" elicited its ruling by analogy with its similarities and analogues in the doctrine, it is called "al-Takhrej". The work was done in calamities in classical times on this approach.

This approach prevailed over a number of muftis who were keen to find analogies and analogues of medical developments in inherited jurisprudence, and if graduation in the terminology of previous jurists was limited to graduation within the limits of a single sect, recent calamities have prompted muftis to transcend the idea of ​​graduation on a single sect. Among the many examples of this behavior: the prohibition of permanent sterilization of women in analogy with the prohibition of castration; Because both of them cut off offspring, and the permissibility of dissecting dead bodies is measured against the permissibility of slitting the abdomen of the dead pregnant woman to extract her fetus whose life is hoped for, and the permissibility of slitting the abdomen of the dead to extract the usurped money that he swallowed.

We can observe this standard course in the fatwas of Jad al-Haq Ali Jad al-Haq, Abd al-Sattar Abu Ghuddah, Muhammad Naim Yassin, Muhammad Suleiman al-Ashqar, Omar Suleiman al-Ashqar and others.

Jad al-Haqq - for example - was the first to come up with the permissibility of transplanting human organs based on a number of considerations, the first of which is the permissibility of slitting the abdomen of the dead in order to extract the money he has swallowed or to extract an embryo, and that the body of the dead is pure, alive and dead, according to the majority of jurists, and that jurists have permitted the connection of a broken human bone to a bone immaculate.

2. The conduct of the purposes of Sharia and the overall rules

The purposes are “the notable meanings and judgments of the lawgiver in all or most cases of legislation,” as Al-Tahir bin Ashour said. Text supporting it or opposing it), blocking the pretexts (i.e. the reasons that lead to the forbidden), and the desirability (which is excluding something from its counterparts by excluding them, it is a departure from analogy for a desired benefit).

The purposes of Sharia were part of the investigations of jurisprudential analogy, but it was expanded until it turned into a methodology to go beyond the partial analogy itself.

The origin in the jurisprudential tradition is that the jurist builds his rulings on graduation as previously, but many collective and individual fatwas have gone beyond that to building on the purposes of Sharia and interests on the one hand, or building on the overall jurisprudential rules on the other hand, under the pressure of modern times with its calamities and changes.

Invoking the purposes and general rules started by the reformers in order to harmonize with the West and build the idea of ​​institutions, but the urgent need to produce detailed fatwas on everything that is emerging has forced many muftis and jurisprudence councils to follow the reformist approach since the seventies of the twentieth century, because the fatwa in developments is obligatory so as not to be disrupted. Sharia, and the graduation on jurisprudential precedents is no longer possible in everything new, so the muftis resorted to extracting the fundamental evidence directly (the evidence agreed upon are: the Qur’an, the Sunnah, consensus and analogy, and there are different evidences in it).

Among those who went out on the evidence directly were the Council of Senior Scholars, the Permanent Committee for Scholarly Research and Ifta’ in the Kingdom of Saudi Arabia, and the Makkah Council, and this was the dominant trend of the Jeddah Council and many individual muftis such as Mahmoud Shaltout, Mustafa Al-Zarqa, Yusuf Al-Qaradawi, Al-Mukhtar Al-Salami and others.

This behavior also appeared in the decisions and fatwas of the Jeddah Council, which are based on the intentional and interest-based approach - permissibility and prohibition - and to stay away from jurisprudence in general. Examples of this are the Council’s prohibition of establishing milk banks in which milk is mixed, so its source is not known; To preserve lineage, which is one of the purposes of Sharia, and because breastfeeding is a bond like lineage, and it is permissible to use the organs of the dead with controls; In implementation of the purposes of the Sharia and the achievement of an overriding interest, which is mercy and altruism, we clearly glimpse this intentional course in the preamble of a set of decisions taken by the Council, as in cloning, birth control, and the use of human organs and others.

As for individual muftis such as Mustafa Al-Zarqa and Yusuf Al-Qaradawi, they do not hide their open-mindedness. Al-Zarqa explained that collective ijtihad and the emergence of jurisprudential councils resulted in the modern trend towards renewing jurisprudence and drawing from it in formulating laws, which prompted the “new graduation on the principles of jurisprudence and the purposes of Sharia while The schools of jurisprudence were silent about him in their ancient texts of current issues and emerging matters.” Al-Zarqa practiced this in his fatwas, and issued a fatwa permitting autopsy to learn about different types of diseases or to learn medicine; To achieve the essential interests (which is an intermediate rank between the essential and the ameliorative).

As for Al-Qaradawi, he wrote about the necessity of new ijtihad and reconsideration of the jurisprudential heritage based on the criteria of the purposes of Sharia and the interests of creation and facilitation for people. Its impact, contemporary, in his opinion, requires - in his opinion - two types of diligence: selective diligence and structural diligence, and it is selective diligence to choose the opinion of Ibn Hazm Al-Andalusi in standing at the words of the street, and that the forbidden breastfeeding is “what the suckling sucked from the breast of the breastfeeding mother with it only”, and then permitted milk banks Based on this, and that it "achieves a significant legitimate interest and pays a need that must be paid" in addition to other inferences.

As for Saudi scholars, individuals and bodies, despite their commitment to the Hanbali school of thought mostly, with a tendency to Ibn Taymiyyah’s sayings and choices, they resorted in many medical developments to the interests or the general rules of Sharia, where they lacked the jurisprudential text or the interpretation of the old jurisprudential analogues, and for example, the fatwa of the Commission Senior scholars unanimously agree that autopsy is permissible for the purpose of verifying a criminal case or an epidemic disease; “In order to achieve many interests in the areas of security, justice and the prevention of society from epidemic diseases. The evil of violating the dignity of the dissected corpse is submerged in the side of the many and public interests achieved by this,” as well as the fatwa of the Council of Senior Scholars on the permissibility of transplanting the cornea of ​​the eye; Based on interests, and the fatwa of the Standing Committee for Research on the permissibility of general and partial anesthesia; "For what it requires of the obvious interest."

Relying on interests is restricted to the interests that are considered legally or the interests sent about which the legislator remained silent. It is not intended to be absolute interests. Therefore, the fatwas, for example, agreed on the prohibition of abortion after the fetus reaches 120 days;

To breathe the spirit into him, “even if the medical diagnosis indicates that he is deformed, unless it is proven by the report of a medical committee of trustworthy and specialized doctors that the continuation of the pregnancy in it is a definite danger to the mother’s life, then it is permissible to abort it, whether it is deformed or not, in order to ward off the greater of the two evils.”

This binary classification of fatwas reflects the difference in the fatwa approach and the position on the jurisprudential heritage in general. The fatwa is conflicted by two different visions:

The first sees that “when a person is able to follow the texts, he does not turn away from them. Otherwise, he strives in his opinion to know the likes and analogies, and the texts are less likely to be an expert in them and their evidence for the rulings,” as Ibn Taymiyyah said.

As for the second, you think that it is an exaggeration to claim that the old books contain the answer to every question, which is the vision expressed by Mustafa Al-Zarqa and Yusuf Al-Qaradawi in the foregoing, but its renewal lies in the selection from the heritage or the graduation on the rules or sources of legislation directly by overriding adherence to a particular doctrine .

This means that the resort of the first party to the purposes and general rules is not entirely excluded, but is contingent upon the inability to graduate or find the old jurisprudential counterpart on which to measure, and the second party's resort to graduation is not totally rejected, but it is not a condition in dealing with developments and jurisprudential calamities, and accordingly it can be responded Fatwas generally focus on two central issues:

The first: the medical developments that are acceptable and unacceptable, and this affects the formation of the jurist and his mastery of the branches of jurisprudence and his ability to graduate.

The second: the jurist’s method of fatwa and his position on the jurisprudential heritage, as previously said, does he adhere to the doctrinal tradition or expand outside the approved schools?

How does he pick them up?

What are his criteria for that?

In both cases, there has been no progress in the methodology of contemporary fatwas in the developments. Rather, it appears in many fatwas that they do not have a coherent approach that accommodates the developments and their logic and is compatible with the variables of the overall system (from artificial insemination and reproductive techniques to genetic modification techniques and artificial intelligence applications), and from Then the difference between the two muftis is - in my opinion - a difference in degree and not in the depth of the method.

It seemed in many developments that each issue was dealt with individually, and thinking did not amount to an attempt to formulate a general approach that accommodates the jurisprudential heritage, its logic and techniques, as well as the spirit of the age and its transformations on the one hand, and preserves for itself systematic coherence and non-selectivity on the other.

All of this is only possible by obtaining solid and dual knowledge in the two fields: 1) the jurisprudential heritage 2) and the field or specialization to which these developments belong, 3) with the active and critical engagement with modern ethical discussions on the same issues. A mere reference to self-interest or universal rules is a reference to generalities that can be used in both analysis and prohibition. On the pretext of achieving an interest or repelling a corrupting, the problem lies in how these principles are applied to specific cases, the criteria for that revelation, the balances of interests and disadvantages, and who determines them? And based on what? (A medical, legal, jurisprudential, social, personal, or all of this?), and all of these issues have remained vague and flexible in contemporary fatwas.