التأسيس لتحديث الفقه الإسلامي و رده إلى أصوله
The foundation for the modernization of Islamic jurisprudence and its referring to its origins
الملخَّص (Abstract)
The present work is a compilation of 14 scientific articles published in peer reviewed scientific journals through the period from 2000 to 2017.
This research is based on the “laws of the basic structure” of the physical sciences that we know about the “sensible world”. The present work is primarily based on the “law of causality” and “the second law of thermodynamics and entropy function analyzes attached to it”. It has been established that this universe is created by voluntary actions. The Creator possesses tremendous “calculating powers and will”, which produce decisions. The Creator “realm/domain” is manifested in “the world of the five human senses” and beyond it. The Creator has infinite capabilities, whose presence extends over all time and all space without any limits.
One of the most important results of the research into the Creator’s attributes and his infinite capabilities that extend over all time and space is “denying any possibility of embodying the “Creator God” in whole or in part in any way”. This is because if God is “confined to a body” or an “entity with limited capabilities” in time and space (even if for a single moment), control and communication will be disrupted, and this universe will perish/cease to exist.
“Creator God” does not take a snooze or sleep. Also, God is alive and does not die. Because if anything of that happened, this universe would perish/cease to exist. These analyzes were conducted in “Chapter Two”. For getting more knowledge about “the unseen world” and communication with the creator, philosophies and religions were researched in “Chapter Three”. In this chapter, we did not find a belief about the “Creator God” that corresponds to the “creator’s attributes and abilities”, which we deduced by this search, except the “Islamic Religion” and “The Book of the Noble Qur’an”.
In the “fourth chapter” the “modernization of the science of the fundamentals of jurisprudence and its reference to their sources” is discussed. We show that the “Current jurisprudence” is transmitted from the “period of jurisprudence diligence” which “ended four centuries ago”. The “transmitted jurisprudence” decides that “every specific verse” is a “self-contained law”. By activating what was stated in “Surah Al-Imran, verse 7”, we find out that “the Collection of the Decisive Specific Verses” has “its own additional significance in the science of the fundamentals of jurisprudence”. It states that “the Collection of the Decisive Specific Verses” as “one unit” is the “Origin of the Holy Qur’an”. It plays the same role as the “constitutional law” in “the modern legislative systems”. “The Collection of the Decisive Specific Verses” as “one unit” defines a “tight constitutional framework”. It is not permitted to allow any transgress or contradiction of any one of the “constitutional decisive verses of this framework”. By our present work we add these principles to the “science of the fundamentals of jurisprudence”.
“The Sunnah, which is: the actions and sayings taken from the Noble Messenger”. The Sunnah is “a revelation from God to His Messenger”. The position of “The Sunnah” in the “Holy Qur’an” is that it shows “the detailing of its entirety, the restriction of its absolute, and the specification of its generality”. Then, “the honorable Sunnah set out by the Prophet” is an essential part of “The Islamic Message”. Therefore, the “Islamic constitutional framework” consists of: “The Collection of the Decisive Verses of the Holy Qur’an and the confirmed Sunnah of the Prophet”.
According to the “Islamic constitutional framework” defined in the previous paragraph, the honorable Sunnah of the Prophet in “Governance and Administration” are “binding texts by virtue of this definition”. An “essential result” is that: “the president is committed to applying the law to himself on an equal basis with any citizen”. This is specifically based on the “hadith of the Holy Prophet when Zaid bin Haritha came to him interceding for a woman who borrowed goods and then denied them, and as it came in the “Ruling introductory speech” for the “rightly guided Caliphs: Abu-Bakr and Umar ibn al-Khattab”. That is the “constitutional state” or “the state of law” in the “definitions of the modern legislative systems”. Therefore, the “constitutional purposes/objectives/intentions of the Islamic legislations” becomes: “preserving the soul, mind, religion, honor, and ownership/belongings; plus establishing the state of law”.
In “Chapter Five” and based on what was defined in “Chapter Four”; on the “Islamic constitutional framework” and “constitutional purposes/objectives/intentions”, the “constitutional control” is activated on the “jurisprudence transmitted to us” from “the period of jurisprudence diligence that ended four centuries ago”. Consequently, the application of a “Suspension penalty” or “Cancellation penalty” should come into effect for what falls outside the “Islamic constitutional framework”.
By applying the “constitutional control” on the jurisprudence of “ruling by dominance”, we find out that it completely falls outside this “binding constitutional framework” and the “Cancellation penalty” should be obligatorily applied to it.
As “the state of the law is an Islamic duty” and “obtaining the presidency of the state by force and deception is prohibited by Sharia, as it is established in the Khilafah Rashidah state”. Then, writing “a constitutional law, applying the separation of powers, the activation of democratic mechanisms and the accountability of the head of state for the authority delegated to him from the ground up”, all of them are principles of “The modern legitimate Islamic state”. By these principles, the “modern Khilafah Rashidah state” can be revived even if the ruler of the Islamic countries became a man from among the common people and not among the pious as the Rightly Guided Caliphs were.
Since “the law of causality and the second law of thermodynamics” are “basic laws of physical sciences in our sensible world” and these laws revealed the existence of the “world of the unseen”, this means that this “imperceptible world to man” is a “real world and it has a physical presence”. This calls us to search in the sixth chapter for “The Physical Foundations of the Islamic doctrine and Sharia”, where we search for the location of the “law of causality” and “the second law of thermodynamics” in the “world of the unseen”.
In “Chapter Six”, it is proven that the “Holy Qur’an” shows that “the law of causality and the second law of thermodynamics” are among the general laws in the universe. Both are apparent to the human senses; and exist in the inner part of the world (which God concealed from the human senses). Thus, existence of these laws extends in the “world of the unseen” in addition to their presence in the “world of testimony, which is sensed by the five senses”.
Based on what the decisive verses of the Holy Qur’an decide; “the laws that govern physical phenomena” are “specified by God Almighty, and it is within his power to disable or replace them at any time as he pleases”, as happened in the fire that became “cool and peace” upon our master Abraham and the sea that parted with the stick of our master Moses.
This is logical because the Creator of this universe is one, but he is only, for the wisdom that he wants, made a part of it visible to the senses of man during his well-designed journey on earth, and another was hidden from the human senses. This is done to get Adam and his children to practice a virtual world during their journey on the earth. But before Adam descended to earth, everything was visible to him in “the supreme kingdom of God” in the Heaven. Then everything will appear again after death in the Hereafter life.
As humans are living in a virtual world during their journey on this earth, it is logical that we extend the search to the “creation story” to get acquainted with “the ultimate purpose” of the creation of Adam and his descendants. Also, the search extended to get knowledge about the integration of this journey with the “story of creation” and the possible reasons for sending Adam and his descendants to practice life in this virtual world, thus we can understand precisely; what is required from humans to gain in this “worldly life” what make them attain the “commendation and acceptance of the Creator” to deserve living in “God’s realm in paradise”. It is also to acknowledge/cognize the relationship between “The Islamic legislations” and “The Commendation and Acceptance Conditions of the Creator”.
Therefore, we can apprehend the Knowledge about the wisdom and necessity of putting Adam and his offspring under specific circumstances in their defined journey on Earth. The “game theory” is used for analyzing “the logic of the human relations during their journey on the earth and the expected findings and forms of these relations”.
It is expected that at the completion of the human experience at the end of time to get “the human social transactions” to be settled on “the optimal” form that achieves “the utmost security and well-being for the members of society according to the criteria of optimum security and luxury”. This will be realized by achieving “the pinnacle of social civilization”. At that pinnacle, social relations will be based on the principle: “Both surplus authority and surplus value equal zero at the same time”. “Surplus authority” is the authority available to the stronger party without any accountability on the transactions of it. “Surplus value” is the difference between the value of the commodity and the payment for it when buying, selling, financial or economic exchange transactions and production processes. This definition includes the term: “surplus value” in Karl Marx’s “Theory of Capital Accumulation” obtained by bourgeois class (owners of capital and the tools of production) from employees”. “Zero surplus values” will be realized at all “levels of legislations”. These levels are “moral level controlling individuals”, “legal level between individuals and other entities within the state”, and “constitutional level between the presidency of the state and people”. This is evident in the “constitutional purposes/objectives/intentions of the Islamic legislations” which is: “preserving the soul, mind, religion, honor, and money; plus establishing the state of law”.
The rules regulating social behavior in the Islamic law with its three levels (moral, legal, and constitutional levels) are: “justice, freedom, equality, and the state of law”. The bases for the principle of “surplus authority equals zero” are realized in the hadith of the Holy Prophet when Zaid bin Haritha came to him interceding for the Makhzum woman who stole commodities. Also, in the rules declared by Abu-Bakr and Umar for defining their principles of government. This is defined in the beginning of this abstract. Details have been clarified in chapters four and five. Finally, this means that the Islamic law is based on “surplus authority equals to zero”. The basis of “Surplus value is equal to zero” exists in the “command to be fair in buying, selling, measure, favor and charity”. In this regard, the “prohibition of usury” is an additional rule in the Islamic law because it is a “malicious way” for obtaining the “surplus value” as shown in the mathematical model based on the “Markov Transition Matrix” and its “equilibrium vector”.
Thus, it becomes clear that the experience of life on the earth converges at the end to “people’s conviction of the usefulness and feasibility of the Islamic Sharia”. This “conviction and working with its requirements” are “the basis of meriting the entitlement of life in the Most-High Kingdom of God”. That is the aim of the human experience of life on the earth. Thus, the human journey on the earth is “not to punish people for Adam’s sin and his disobedience to God’s command, Glory be to Him, and “not to test them”. God knows best the humans whom He created, forgives all sins and God knows all of what is in the breasts. By “regulating the human social behavior” and finding out “the concept of the social contract”, then humans will not make a mistake as Adam did before.