تنازع الأصوليين والفقهاء في التقعيد وثمرته الفقهية

Abstract

This research seeks to affirm the presence of a method of laying down rules for the fundamentals of Islamic jurisprudence that has not been dealt with by authors who have written about the history of codifying the science of Islamic jurisprudence. It can be termed the jurists’ method. What is not meant by this is the methodology of the Hanafi school of thought that is built on making a rule based on the fatwas of their imams. That methodology is well known and not discussed. What is meant here is a different methodology, which was followed by the jurists who were well-versed in Islamic jurisprudence and who did not affiliate themselves with a particular school of thought. This methodology is founded on rejecting the methodology of the logicians in laying down the rules of the foundations of Islamic jurisprudence and founded on independently choosing specific views in issues relating to the foundations. These views are built upon considerations that are different from the considerations of the Hanafi and fundamentalist logicians. This research clarifies some of the specific characteristics of this methodology, some of its features, and its evidence. It also clarifies the effect of conflict and differing on jurisprudence in a number of jurisprudence issues. The research concluded that differing between the jurists and fundamentalists in laying down issues of the fundamentals of Islamic jurisprudence is of two types: The first is verbal, which does not affect jurisprudence. The second is in meaning upon which actions and jurisprudence are based. The research discusses the issue of the responsibility of a drunken person and the reality of health. What seems to be weightier in our view is the opinion of the jurists in the first rather than the second. The research recommends an in-depth study of issues relating to the fundamentals of Islamic jurisprudence. It also recommends that the terms used by the jurists should be closely looked into in books related to the fundamentals of Islamic jurisprudence. This should be done within the context of looking into the jurists’ collection of statements related to rules of the fundamentals and looking into the rules of jurisprudence that cause differing with the rules that the fundamentalists laid down in their books. This serves as a precursor to identifying the network of relations that exist between the rules mentioned by the jurists and the fundamentalists.