Contemporary Jurisprudence

[snakelegs]

i have been browsing around on http://islamqa.com/index.php?ln=eng
lately and read the fatwa below and this reminded me of some questions i've had for a while.
mainly, in the case of modern extrapolation from the principles of shariah, how do you decide which scholar to go by, as there is always a diversity of interpretations?
do you just believe someone else who tells you sheikh so-and-so is the one to follow or do you read a variety of positions of contemporary scholars and then decide for yourself? who decides which modern technologies are ok to rely on and which not? how do you know the reasoning that led to the decision below?

How can zinaa be proven?

Question:
I know that in the past if someone has committed adultery, they had to bring 4 witnesses .
My question is can we prove that today by using latest scientific methods as the DNA test, instead of bringing 4 witnesses.

Answer:

Praise be to Allaah.

According to Islamic sharee’ah, zinaa can only be proven by clear evidence, namely the testimony of four trustworthy and sound witnesses who saw it actually happen, or by confession of guilt, or by the woman becoming pregnant. It cannot be proven by DNA testing or by use of cameras and videos in place of the things mentioned above. And Allaah knows best.


http://islamqa.com/index.php?ref=6926&ln=eng

 

[Umar001]

i have been browsing around on http://islamqa.com/index.php?ln=eng
lately and read the fatwa below and this reminded me of some questions i've had for a while.
mainly, in the case of modern extrapolation from the principles of shariah, how do you decide which scholar to go by, as there is always a diversity of interpretations?
do you just believe someone else who tells you sheikh so-and-so is the one to follow or do you read a variety of positions of contemporary scholars and then decide for yourself? who decides which modern technologies are ok to rely on and which not? how do you know the reasoning that led to the decision below?

How can zinaa be proven?

Question:
I know that in the past if someone has committed adultery, they had to bring 4 witnesses .
My question is can we prove that today by using latest scientific methods as the DNA test, instead of bringing 4 witnesses.

Answer:

Praise be to Allaah.

According to Islamic sharee’ah, zinaa can only be proven by clear evidence, namely the testimony of four trustworthy and sound witnesses who saw it actually happen, or by confession of guilt, or by the woman becoming pregnant. It cannot be proven by DNA testing or by use of cameras and videos in place of the things mentioned above. And Allaah knows best.


http://islamqa.com/index.php?ref=6926&ln=eng

Yea I wanted to ask something similar, it says those who say it, well what if they see the video tape?

 

[syilla]

i think brother Al-Ansar has already answered this question in this link

http://www.islamicboard.com/basics-islam/4498-shariah-law.html (regarding the dna test....but you have to do a bit of searching)

and another

http://www.islamicboard.com/islamic-jurisprudence/4618-what-ruling-crime-rape-islam.html (i think this is more specific to the crime rape test)

 

[syilla]

Having said that, let me now provide you with a brief explanation on the conditions for the Hadd punishment for zina (adultery) in Islam. One of the aims of the Islamic state is the protection and preservation of society from harm. The Islamic state is not aimed at monitoring the religious commitment of its citizens, rather it aims to ensure that corruption does not spread in society. The punishment for adultery requires 4 individual witnesses. There is a purpose for this massive burden of evidence. As Shaykh Abdul-Wahhab At-Turayri, former Professor at Al-Imam Univeristy [Riyadh, Saudi Arabia], writes:
The punishments for fornication and adultery are designed more to protect society from the open practice of licentious sexual behavior than they are designed to punish people.

It is nearly impossible to get a conviction for adultery except in a case where it is carried out in public for all eyes to see. With this threat of severe punishment, people will keep their evil deeds concealed and society as a whole will be protected.

So if someone commits a sin in private, they will be held accountable before God for that sin. But the function of the Islamic state, in terms of penal law, is to protect the society from harm. If people practice immoral deeds publicly then they are not only sinning themselves, but they are harming the society by spreading their immorality, and it is the latter action that requires the intervention of the state.

i hope this will help...

 

[snakelegs]

i think brother Al-Ansar has already answered this question in this link

http://www.islamicboard.com/basics-islam/4498-shariah-law.html (regarding the dna test....but you have to do a bit of searching)

and another

http://www.islamicboard.com/islamic-jurisprudence/4618-what-ruling-crime-rape-islam.html (i think this is more specific to the crime rape test)

thanks syilla - will check this out later when i have more time.
it wasn't the specific topic i was wondering about, but how these conclusions are reached and who determines how to apply the law to modern life and technologies.

 

[snakelegs]

just realized that this thread should've gone in the islamic jurisprudence sectiion. sorry.

 

[Ansar Al-'Adl]

There is considerable leniency in extrapolating jurisprudential rules to modern technologies; this is based on Qiyâs (analogical deduction), which must be performed by one who is knowledgeable of the Islamic sources and has studied the Islamic sciences in detail so that they are fully aware of the laws which they are extrapolating.

The issue you mentioned about zina doesn't really apply here since this is a hadd punishment and it must have four witnesses as proven in the Qur'an and Sunnah. This is because the Islamic state does not want to punish and convict people for moral offenses, it only wishes to prevent the spreading of immoral practices which occurs through public licentious acts. Syilla quoted one of my earlier posts which explains this.

Here are some fatawa (religious rulings) that concern modern technologies/issues which I am sure you will find interesting:
http://www.islamtoday.com/show_detail_section.cfm?q_id=1050&main_cat_id=25
http://www.islamtoday.com/show_detail_section.cfm?q_id=36&main_cat_id=1 <-
http://www.islamtoday.net/english/showme.cfm?cat_id=2&sub_cat_id=553
http://www.islamtoday.com/show_detail_section.cfm?q_id=372&main_cat_id=31
http://www.islamtoday.com/show_detail_section.cfm?q_id=6&main_cat_id=31
http://www.islamtoday.com/show_detail_section.cfm?q_id=20&main_cat_id=31

Regards

 

[snakelegs]

thanks ansar. i will check these out later. just finished reading the links syilla gave. they didn't quite answer my questions, but they were really interesting to read and i learned a lot from them about shariah. i see now that i have often judged the interpretation and use/abuse made by some governments of the shariah as being identical to the shariah itself.
syilla - thanks - i really enjoyed reading those. lotsa material there!

 

[syilla]

http://www.islamtoday.com/show_detail_section.cfm?q_id=36&main_cat_id=1 <-


Regards

oh no...do you want to band the emoticon. :rollseyes (oh dear...pity you smiley)

 

[snakelegs]

There is considerable leniency in extrapolating jurisprudential rules to modern technologies; this is based on Qiyâs (analogical deduction), which must be performed by one who is knowledgeable of the Islamic sources and has studied the Islamic sciences in detail so that they are fully aware of the laws which they are extrapolating.

The issue you mentioned about zina doesn't really apply here since this is a hadd punishment and it must have four witnesses as proven in the Qur'an and Sunnah. This is because the Islamic state does not want to punish and convict people for moral offenses, it only wishes to prevent the spreading of immoral practices which occurs through public licentious acts. Syilla quoted one of my earlier posts which explains this.

Here are some fatawa (religious rulings) that concern modern technologies/issues which I am sure you will find interesting:
http://www.islamtoday.com/show_detail_section.cfm?q_id=1050&main_cat_id=25
http://www.islamtoday.com/show_detail_section.cfm?q_id=36&main_cat_id=1 <-
http://www.islamtoday.net/english/showme.cfm?cat_id=2&sub_cat_id=553
http://www.islamtoday.com/show_detail_section.cfm?q_id=372&main_cat_id=31
http://www.islamtoday.com/show_detail_section.cfm?q_id=6&main_cat_id=31
http://www.islamtoday.com/show_detail_section.cfm?q_id=20&main_cat_id=31

Regards

thanks for those links - you're right, i did find them intersting (and sensible, too!). the one that i found the most fascinating is the one on cloning (which included other stuff - like abortion and stem cell research). others might want to check it out:

http://www.islamtoday.net/english/showme.cfm?cat_id=2&sub_cat_id=553

my original question, though, was how do you know whose ruling to follow because there are cases where there would be difference of opinion among scholars. with things that don't have to do with modern dilemnas, you have that pretty well worked out in the concept of classification of hadith.
but in this case, how do you decide which sheikh, or do you just read as many different rulings as possible and then decide for yourself? (that would make the most sense to me).

 

[Ansar Al-'Adl]

do you just read as many different rulings as possible and then decide for yourself? (that would make the most sense to me).

Yes, it is the verdict most in accordance with the Qur'an and Ahadith.

 

[snakelegs]

Yes, it is the verdict most in accordance with the Qur'an and Ahadith.

just want to make sure of what you're saying here. after reading rulings from various islamic scholars, untimately you (the individual musilm) are the one who makes the final decision as to which is most in accordance with the qur'an and ahadith?
is that right?
(actually this is the way i make decisions about news articles too - lots of different sources before making up my mind, so this principle makes sense to me).
thanks!
does anybody else have comments?

 

[Ansar Al-'Adl]

just want to make sure of what you're saying here. after reading rulings from various islamic scholars, untimately you (the individual musilm) are the one who makes the final decision as to which is most in accordance with the qur'an and ahadith?

Yes and no. This is the principle of how we decide which ruling is most correct, but in practice for the individual Muslim it depends on their knowledge base. If someone has very little knowledge of Qur'an and Ahadith, they will not be able to make a valid judgement on whether something is in accordance with the Qur'an and Ahadith or not. In this situation, they rely on those scholars with knowledge whom they have access too and whom they deem trustworthy.

Regards

 

[snakelegs]

thanks!

 

[Musalmaan]

Yes and no. This is the principle of how we decide which ruling is most correct, but in practice for the individual Muslim it depends on their knowledge base.

i just like to know your opinion abt this statement "either you are mujhtahid or muqallid (of mujhtahid)",
do you agree to this well known term in Islam?

Yes, it is the verdict most in accordance with the Qur'an and Ahadith.

can you share that ayah with its tafseer which approves "you just read as many different rulings as possible and then decide for yourself"?

but, i hope my first question's answer is much more important for me which can make me know of your understanding/way etc.

wassalam

 

[snakelegs]

i just like to know your opinion abt this statement "either you are mujhtahid or muqallid (of mujhtahid)",
do you agree to this well known term in Islam?

wassalam

no fair!! please translate -
does it mean something like you either stuggle (to learn) or you imitate?
thanks....

 

[snakelegs]

please, somebody answer my last question......

 

[Ansar Al-'Adl]

i just like to know your opinion abt this statement "either you are mujhtahid or muqallid (of mujhtahid)",
do you agree to this well known term in Islam?

If you already think it is a "well known term in Islam" then you don't need my opinion. All I will say is by all means follow a madh'hab, so long as you don't make it a source of division. I am not against following a madh'hab.

can you share that ayah with its tafseer which approves "you just read as many different rulings as possible and then decide for yourself"?

I never said that, those are your words not mine. In fact I specifically stated that the laymen CANNOT come to an informed decision about what is in accordance with the Qur'an and the Sunnah on their own. They need to rely on scholars. What I said is that the correct opinion is the one which is most in accordance with the Qur'an and Sunnah. And there are many legitimate differences of opinion in this regard.

 

[Ansar Al-'Adl]

no fair!! please translate -
does it mean something like you either stuggle (to learn) or you imitate?
thanks....

No; a mujtahid is the most knowledgeable scholar who is qualified to perform ijtihad (juristic opinion) to come to a ruling on a particular issue. A muqallid is someone who makes taqleed (blind following) on a particular scholar.

But we're already going off-topic here.

Regards

 

[snakelegs]

thanks, ansar! i misread it as mujahid.