Classical Jurists Research Articles

The germs of environmental protection in Roman law

AbstractMost legal institutions of modern civil law have their origins, at least in principle, in Roman law. This can also be seen in cases and legal reasoning related to the environment since certain rudiments or precursors of modern environmental law can be found in the writings of classical Roman jurists. Nevertheless, it would be an overstatement to speak of Roman environmental law. The focus of Roman classical jurists was on the protection of concrete property rights, mainly in neighborhood contexts. Only a few cases show that the underlying motive of legal argument was the protection of public interest, which brings these cases closer to the idea of modern environmental law.

A Subtle Subversion

Abstract The Arab socio-political dominance of 7th-8th century AD Muslim conquerors made its way into the classical legal discourse on kafāʾa (suitable matches in marriage). Most classical jurists considered the marriage of an Arab woman to a non-Arab man to be one of several potential sources of shame to the bride and her family. This article traces how the Persian scholars of the Šāfiʿī school in Khurasan subverted Arabo-centrism in considerations of marriage by reinterpreting the legal doctrine of kafāʾa in the late 10th-11th centuries. Khurasanian Šāfiʿīs built upon but ultimately departed from the position of their colleagues in Iraq on Arab superiority: They formulated a new understanding of lineage which excluded considerations of ethnicity. The discussion of the doctrine of kafāʾa provides an example of how non-Arabs carved a place for themselves within an Islamic legal culture that originally disadvantaged them.

İslam Hukuk Literatürü Siyâsetin bir Tezâhürü müdür?: İstitâbe Hakkındaki Anlatı Değişimi Özelinde Bir Analiz

Orientalists such as Schacht claimed, without sound evidence, that Islamic legal writings as a whole represent politics. Others such as Humphreys followed their lead and looked almost obsessively for any divergences across classical writings in various disciplines including Islamic law with an eye to taking the changes in the narrative structure across classical writings as an indication of an allegedly surreptitious political agenda of classical Muslim scholars. Is Islamic legal literature really a manifestation of politics? In an effort to provide an answer to this question against this background, this paper deals with the narrative change seen in the scope of application of istitāba between the 8th and the 11th century legal writings of al-Šāfiʿī and al-Ghazālī on istitāba, a legal institution that refers to calling on an apostate (murtadd) to repent in cases of apostasy (irtidāt). It particularly examines the alleged impact which the narrative change across classical jurists’ writings on the notion of istitāba had upon the formation of Sunnism as purported by some. In fact, some Western scholars claim that in the 11th century al-Ghazālī deviated from the norm set in the 8th century by al-Šāfiʿī when the former limited the scope of istitāba only to common people, removing that right from dāʿīs (the propagandists), an apparent divergence which was then linked to another earlier apparent divergence between al-Baghdādī and al-Ašʿarī. Looking at these divergences, they argue that al-Baghdādī and al-Ghazālī served as state apparatuses to protect the Sunnī identity of the Seljukid state against her enemies, a claim which has been skillfully used to make it appear that contemporary intolerant applications of the institution of istitāba is rooted in Islamic law and the “Sunni orthodoxy.” Providing a close comparative reading of the relevant classical works by al-Ašʿarī and al-Baghdādī as well as al-Šāfiʿī and al-Ghazālī along with others such as Abū Yūsuf and al-Sarakhsī, this work argues that such divergences are more apparent than real, while also showing that these Western scholars have done much disingenuity to make it appear the otherwise, in an effort to form a myth about Islamic law and Sunnism. This seems to represent, this paper further argues, what seems to be quite a common tendency among some western scholars to link narrative changes across classical sources to politics especially when it serves to compromise the strength of unity of practice and belief of the people of Turkish Republic. Finally, on the basis of the analysis on istitāba and relevant matters, this paper rebuts the idea that Islamic law is a manifestation of politics.

Sabab or Ḥikma? : The Relationship between Muḥāḏāt al-Nisāʾ (Adjacency with Women) and the Ištibāh

When man and woman pray adjacent to each other in a congregational prayer under certain conditions, this constitutes the phenomenon referred to in classical manuals of Islamic law as muḥāḏāt (adjacency with women). There are various scenarios under which muḥāḏāt can lead either to the invalidation of the prayer of the man or the woman or even worse all the participants. The sababs (reasons) behind the relevant legal rulings on muḥāḏāt in its various scenarios are outlined in detail in classical manuals of the Ḥanafī school, which will also be presented here briefly. This paper, however, seeks to find out the ḥikma (philosophy of law), as opposed to, the sabab, behind invalidation of prayer in congregational regular prayer in cases of muḥāḏāt. In fact, it particularly attempts to answer, for the first time in literature, the question of why the prayer of a man praying adjacent to a woman becomes invalid if they pray in congregation and yet it remains valid if they pray by themselves or in a congregational funeral prayer. What is it with congregational regular prayers that makes the difference? These questions constitute an important gap in the previous literature. To fill this gap, this paper, falling back upon classical manuals of Ḥanafī Fiqh, argues that this seems to have much to do with the legal ruling on ištibāh (doubtfulness) with regard to the position of the imām in congregational prayers, which requires participants to maintain sight of the imām directly or indirectly, which, as will be illustrated, seems to be hindered when muḥāḏāt occurs, thus causing the invalidation of prayer. Filling this gap becomes urgent and relevant especially when one considers the fact that this gap has been misused in recent scholarship to accuse Ḥanafīs of not relying on the Qurʾān and the Sunna for law-making in Islamic law and instead simply repeating the laws that existed before. It was also maintained by some contemporary scholars, again partly by using this gap in the literature, that uṣūl al-fiqh was used not to derive laws from the sources of Islamic law, the primary ones of which are the Qurʾān and the Sunna, as claimed by classical jurists, but rather to cover up this surreptitious use of existing laws and then making them appear as laws derived from the Qurʾān and the Sunna. By exploring the philosophy of law behind the legal ruling on muḥāḏāt, the present work illustrates that these accusations have no basis. Finally, revealing the relationship between ištibāh and muḥāḏāt al-nisāʾ for the first time also has the cumulative effect of substantiating idea that it is far more objective and feasible to rely on sabab (reason) or ʿilla (ratio legis), whichever applies, as opposed to ḥikma in deriving laws from the sources of Islamic law.

Giuristi classici di origine ebraica nella scienza giuridica tedesca del XIX e della prima metà del XX secolo Trento, 6-7 ottobre 2022

Abstract - This report retraces the central passages of the conference Classical Jurists of Jewish Origin in German Legal Science in the Nineteenth and First Half of the Twentieth Century, organized by Fulvio Cortese and Luca Nogler of the University of Trent, two days of work in which the figure of Hugo Sinzheimer (1875-1945) and the jurists presented in the work, Jüdische Klassiker der Deutschen Rechtswissenschaft of 1938, were discussed. Scholars of public law, Roman law, labor law, as well as philosophy of law, morality and politics were confronted with the personalities and works of a selection of the jurists included in Sinzheimer's work.

ADMISSIBILITY OF NON-MUSLIMS EVIDENCE IN CASES INVOLVING MUSLIM PARTIES IN NIGERIA COURT: A CURSORY EXAMINATION OF QUR’AN CHAPTER 5 VERSE 106

The interpretation of Qur’an chapter 5 Verse 106 created a lot of divergent opinions among the early Muslim jurists, especially as regards the admissibility of the evidence of non-Muslims (people of scriptures) in cases involving Muslim parties. While some jurists reject their evidence on the basis that the verse in contemplation has been abrogated, others accepted it in line with the letters and spirit of the Qur’an provision solely, that is, in cases of bequest, on a journey and where Muslims are not available. There is also another candid but liberal opinion that allows such evidence in all circumstances where necessity dictates for same. Does this classical discourse represent the same position of our present society, or is it possible to adopt any of the classical arguments to our current situation, especially in Nigerian society where Muslims and people of other faith (especially Christians) intermingled in several affairs of life? What then will be the situation of the evidence of people who do not qualify as ‘people of scriptures’? This piece, through doctrinal analysis, founds that the classical jurists have exhausted all possible argument and their positions (depending on the school) could be adopted depending on the circumstance of each society and the necessity of each transaction. It is concluded that Muslims should be wary and conscious of the company to keep so as not to forestall compliance with the dictate of Shari‘ah.

COVID-19: Analysing the Principle and Application of Iʿtibār Ma’ālāt in the Selected Fatwas Issued by the Malaysian National Council for Islamic Religious Affairs (MKI)

About 650 years ago, al-Shāṭibī advocated new reforms on Uṣūl al-Fiqh with the introduction of some novel legal theories. The principle iʿtibār ma’ālāt was among the legal theories he proposed in his magnum opus, al-Muwāfaqāt. However, due to some complicity, his theories received little attention and remain stagnated. In fact, few classical jurists have previously paid attention to the principle of iʿtibār ma’ālāt. Nonetheless, in accordance with the development of the discipline of maqāṣid al-sharīʿah, the discussion on the principle of ma’ālāt, which was previously stagnated, has recently begun to gather traction among researchers worldwide in general, as well as in Malaysia in particular. Interestingly, al-Shāṭibī’s theory is applicable in solving several emerging religious concerns, particularly, in the event of COVID-19 pandemic. Several fatwas have been issued at the national as well as state levels in Malaysia to curb this pandemic. In this qualitative study, several fatwas issued by the Malaysian National Council for Islamic Religious Affairs (MKI) has been selected to analyse the principle and application of iʿtibār ma’ālāt. This study explores the principle and application of iʿtibār ma’ālāt which was implicitly and explicitly applied in each fatwa selected. Furthermore, this indicated that the MKI has successfully implemented the principle in issuing fatwas responding to the emerging religious issues.

Formulasi Makna Darurah dan Landasan Legalitasnya Sebagai Metode Penetapan Hukum Islam: Perspektif Empat Madhab

Every Muslim can experience difficult and emergency conditions in various places. This condition impacts the application of Islamic law, which allows it to be inconsistent with the rules in general. The jurists agree that an emergency can be one of the bases and arguments for implementing Islamic law. However, the jurists also have different views regarding the terminological limitations of this condition. This research specifically describes the terminology of darurah according to the fuqaha of the four madhabs and the arguments for its legal basis in Islamic law. This type of research is qualitative library research that focuses on the views of the jurists regarding the terminology of darurah and the arguments for its legal basis in Islamic law in various literature by the jurists. This study found that the terminology of darurah from the perspective of classical jurists is comprehensive, not limited to the urgent need for food, but includes other forced and emergency conditions. That can also be seen in the different readings of the jurists on the problems of the branches of fiqh, when in an emergency which has the same goal, namely to protect al-kulliyat al-khamsah such as protecting the soul (nafs) and others. The argument for applying Islamic law is based on the sources of Islamic law, namely the Qur'an, hadith, ijma', and 'aqli, namely as a form of maslahah mursalah as the principles of usul and fiqh.

THE ROLE OF ISLAMIC ENVIRONMENTAL ETHICS IN THE ALLEVIATION OF CLIMATE CHALLENGES AND THE PRESERVATION OF ECOSYSTEM

The study seeks to investigate the relationship between Islamic environmental ethics and the contemporary climate challenges being faced by the modern world. It explores the role of Islamic environmental ethics in the alleviation of climate change and the preservation of the ecosystem. The Holy Qur’an and the Hadith provide the theoretical foundations for the study of Islamic environmental ethics and their efficacy for durable solutions to current environmental issues. The paper aims to highlight the significance of human responsibility in ensuring the protection and preservation of the natural environment and examines how far the theological discourse on environmental ethics can help us alleviate the human concerns encompassing both animate and inanimate beings on our planet. The conceptual framework for this study is based on the principles derived from the Quranic teachings, the prophet’s sayings, and the opinions of classical jurists. Islamic environmental principles entail the concept of the Oneness of God (توحید) and the application of Haram and Hima (حمى) that serve as the epistemological foundations for this study. These ethical principles address the issues of climate change, deforestation, and water scarcity and emphasize the imperatives of preserving and sustaining natural resources. The study finds that climate change has posed the issues of food scarcity, health hazards, human displacement, and loss of biodiversity and ecosystem which may have the potential catastrophic consequences if left unaddressed. It recommends that the education and awareness programs on Islamic teachings on environmental ethics may contribute to the responsible use and preservation of natural resources and the protection of biodiversity.

Beyond trust: why American classical jurists and economists could not love the corporation

Given the unconditional favour that scholars imbued with classical ideas should bestow on any manifestation of business freedom and entrepreneurial spirit, it was not a given that classical jurists and economists would join the ranks of those who in the late 19th century complained about the corporatisation of the American economy. The usual explanation is that they did so out of doctrinal and practical concerns for the effect of the associated rise of monopolies and trusts. A complementary account exists, however, offered by law historians and based on the doctrinal controversies about the true nature of corporations triggered by the famous Santa Clara decision (1886) of the US Supreme Court. The paper casts new light on the latter account by uncovering those aspects of classical economics that made it impossible for its supporters – economists and jurists alike – to unreservedly support the corporate form before and beyond the trust problem.

Studi Pemikiran Jamal Al Banna tentang Talak

In divorce, by the classical Jurist of fiqh, husbands may unilaterally divorce (talak) without making a dialogue with their wives first. Many contemporary thinkers, especially moslem feminists, assumed that is affected by gender inequality which is a cultural product not pure of Islamic values. Moreover, the fact that the classical Jurists of Fiqh are dominated by men, so the existing of fiqh are patriarchal and masculine pattern. One of the most contemporary moslem thinkers of Gender concerns is Jamal al-Banna, a moslem thinker from Egypt. Then, this article is written to describe Jamal al-Banna’s mindset about divorce. Based on his opinion, he stated that husband cannot say to divorce without the agreement (qabul) of his wife as marriage is a transparent relation symbolized by ijab- qabul contract and also testimonial (syahadah). Therefore, if the agreement is destroyed by divorce, all elements of marriage contract must know. Thus, one-sided divorce by husband is unacceptable. Divorce is acceptable if both of husband dan wife have the agreement. He formulated the rules of divorce, referring to Al-Baqarah verse 229 in which his interpretation is the equality between husband and wife about divorce. His educational background of trading school may influenced his mindset mostly. So, he assumed about the similarity of marriage contract and trading contract in which if a marriage will be destroyed by divorce, both of husband and wife must have the same agreement.

Roman Iustitia Naturalis and Modern Positivist Justice

Introduction. The modern definition of the concept of “justice” is too narrow when we compare it to the famous Roman classical definition of the concept of iustitia as a synonym for justness. Justness is expressed by the constant will to “grant everyone their right”. Ancient thinkers associated the concept of justice with natural law, which unfortunately, is almost lost in modern legal theory. Theoretical Basis. Methods. The article was prepared using general scientific methods (systemic, logical) and special legal methods (comparative legal, formal legal). Results. The concept of “justice” arguably first appeared in Ancient Greece during the 6th to 2nd centuries BC in the philosophy of Pythagoras, Plato, Aristotle and the Stoics. Plato contrasted this understanding of justice with the right of the strong. In the first century BC, Cicero developed this concept further, stating that justice proceeds from natural law, based on the principles of love, friendship, trust and consent. As these principles do not apply equally at different levels (that is, in the family, between friends, between trade partners, between fellow citizens, between foreigners, etc.), the main task of justice is to make an honest allocation of justness to everyone. The Roman lawyer and philosopher would argue that human laws that reject iustitia naturalis lead to lawlessness and the collapse of society. In discussion with Carneades, (who argued that natural justice is folly, and that real civil justice is based on the protection of the benefit or utilitas of the strongest), Cicero argued that without mutual love, trust and friendship, the common benefit of society as a whole, based on the fundamental concept of honesty (honestum), suffers. These principles were adopted by the Roman classical jurists and Justinian compilers in the famous definition of iustitia. Discussion and Сonclusion. Unfortunately, modern positivism in its most extreme manifestation of “pure law” has abandoned the ideas of “natural justice”. This is evidenced by the separation of the principles of morality based on nature, that is, customary law, as a centuries-old practice of regulating relations in society. The result is a significant weakening of the principles of natural unity of people in societies of all levels, including the international human community.

Matrimonial property between jurisprudence and reality

Matrimonial property plays an important role in achieving family stability and in building the society. Therefore, due attention must be given to the nature of matrimonial property, how it is managed and the guidelines governing it when disputes about it arise to protect the financial rights of both spouses from any damage that can threaten the stability and development of the society. Laws have been enacted in some Muslim countries like Tunisia and Malaysia to give a wife the right to have a share in the property acquired by her husband during the marriage. Thus, all the above prompted us to participate in highlighting this issue that was not discussed by classical jurists and to examine the types of wealth acquired during marriage and the ruling of each type in this research paper.

Infaq Of Expertise For The Post Crisis Of Covid-19: Risk Taker Proposition

The economic risk of a pandemic such as crisis of Covid-19 is very distinct from the health risk. Since the economic and public health risks are distinct, the evaluation and design of policies to ameliorate them should be pursued separately. One of the measures to minimize the Covid-19 risk is through infaq mechanisme which has been mandated in Islam. Infaq is a kind of alms giving intended to assist the needs of a man in his daily life. The spirit of giving is promoted by Islam as a means to develop the ummah in the economic and social sector. Some Muslim classical jurists are of the view that the properties endowed or infaq may not necessarily be in physical or tangible forms, but they may be in intangible and various forms. In today’s world, our societies demand the contribution in wider forms including contribution in the form of skills and expertise from the professional experts. Infaq of professional expertise aims to utilize professional experts in order to fulfil those demands craved by the society in many fields such as medical, accounting, law, engineering and architecture. The objective of this case is to expose students on the benefit and potential of infaq of expertise. The purpose is not to disclose weaknesses nor the incompetency on any of the individual or organization, but to provide basis for academic discussion. The methodology of research used is qualitative method using case study approach with related to the Manual of Infaq and Waqf of Expertise. The general finding of this article shows that a good comprehension and application of the unique concept of Infaq of Expertise able to provide various benefits to many people.

ROMAN IUSTITIA NATURALIS AND MODERN POSITIVIST JUSTICE

The modern definition of “justice” is too narrow compared with the famous Roman classical notion of iustitia (synonym for justness), presented as the constant will “granting everyone his”. Ancient thinkers coupled the concept of justice with natural law, which, unfortunately, modern legal theory has almost lost. The study notes that the “justice” concept appeared in Ancient Greece during the VI – II centuries BC in the philosophy of Pythagoras, Plato, Aristotle, and the Stoics. Plato already contrasted such an understanding of justice as the will to “give each his own” with the will based on the power of the strong. In the first century BC, Cicero stated that justice is emerging from natural law, based not on fear and strength but on the natural principles of love, friend-ship, trust and consent that unite people. Since these principles do not apply equally at diverse levels (in the family, between friends, between trade partners, between fellow citizens, between foreigners, etc.), these principles do not operate in the same way, then the main task of justice is honestly (honeste) allocate to each his own. The Roman lawyer and philosopher argues that human laws that reject iustitia naturalis lead to lawlessness and the collapse of society. Object-ing to Carneades, who argued that natural justice is stupidity, and real civil justice is based on protecting the benefit, utility (utilitas) of the strongest, Cicero argues that without mutual love, trust and friendship, the general benefit of society as a whole, based on the fundamental concept of honesty (honestum), suffers. The Roman classical jurists and Justinian compilers adopt-ed these principles in the famous definition of iustitia. Unfortunately, modern positivism, in its extreme manifestation of “pure law”, has abandoned the ideas of “natural justice”, separating the principles of morality based on nature, that is, customary law, as a centuries-old practice of regulating relations in society, has significantly weakened the principles of natural unity of people in societies of all levels, including the international human community.

From conquest to co-existence: Burhān al-Dīn al-Marghīnānī’s (d. 593/1197) re-interpretation of jihād

Abstract Current scholarship on the legal doctrine of jihād presents classical Sunni jurists after the second/eighth century as uniformly championing continual imperial conquest. In this article, I suggest that this sweeping claim for a uniform doctrine neglects what is distinctive in the argumentation of individual juristic thinkers. I trace the genealogy of of Burhān al-Dīn al-Marghīnānī’s (d. 593/1197) theory of jihād in order to show how he radically reinterpreted the doctrine of Ḥanafī school. He introduced the novel approach that jihād need not to be equated with its outward, formal meaning (al-jihād ṣūratan) of military combat. Rather, beyond that outward sense, jihād also had a deeper meaning (al-jihād maʿnan) based on its purpose or function within international relations. For Marghīnānī, part of this function was the preservation of life, freedom, and property. He was thus able to argue that, so long as they secured these ends, peace treaties fulfilled the deeper meaning of jihad. Marghīnānī’s ideas enabled a shift in Ḥanafī thought whereby jurists after him associated jihād with the realization of benefit (maṣlaḥa) for Muslim society. Rather than advocate the obligation of continual conquest, these jurists accepted that decision-making about war and peace should be determined by pragmatic considerations of social interest.

The Maximus of Necessity and Its Application to Organ Transplantation: An Islamic Bioethical Perspective

Islam is second largest religion being practiced around the globe. It is fastest growing believe and rapidly expanding in the western world despite several misunderstanding including Islamic standpoint on organ transplantation and tissue grafting. The objective of this study is to determine the Islamic view point on organ transplantation and tissue grafting with special reference pertaining to human needs under the ambit of Shariah doctrine of necessity and world religions. Since, Islam and other world religions have given immense consideration to humans whether they are alive or dead, and the desecration of human body is considered a violation sufficed to a great sin. Injunctions of the holy Quran and Sunnah have evidently expressed sanctity to human life/body. Hence, taking one’s life without a legal rights or even inflicting any sort of harm, injury, and aggression against an individual is terming an unlawful act. Notably, some scholars contended that, classical jurists’ are silent on the issue of organ transplantation predominantly the transfer of organs from one species to another species. But, in reality, our argument is that, the organ re-plantation can be seen in the Prophetic era. However, as per their view, the reason is obvious, since the organ transplantation associated with the advancement of science. Accordingly, the recent progress in transplant sciences were not totally known to the classical jurists, although, issues pertaining to the sale of human organs have been discussed by them (jurists). Similarly, many other innovative matters can be seen in Prophetic traditions, and that is why, as per jurist’s assertion, it can practically be traced in the Prophetic era.Consequently, this study argues that, the permissibility of organ donation and transplantation somehow mentioned in the main sources of Islamic law and biomedical ethics. Therefore, the basis and rules of permissibility will be derived while discussing organ transplantation, particularly in homo, allotransplant and other inter-related issues under the rubric of necessity doctrine.
 Bangladesh Journal of Medical Science Vol.20(3) 2021 p.511-524

REFORM THROUGH TRADITION: AN ANALYSIS OF YUSUF AL-QARADWI’S APPROACH TO HALAL AND HARAM

The concept of permissibility (?al?l) and impermissibility (?ar?m) claims a central place in the Islamic ethos. Muslims are always conscious about the permissibility of whatever they commit or omit in their daily lives, be it in public or private spheres. The level of this consciousness is even higher when it comes to the matter of food. The bewildering range of edible materials and seemingly countless recipes in today’s food market present a formidable challenge for Muslim jurists (fuqah?) in dealing with the issue of permissibility. Among, Y?suf al-Qara??w? is one of the contemporary scholars who have addressed this issue in the context of today’s challenges. This paper discusses al-Qara??w?’s reformative approach to ?al?l and ?ar?m with especial reference to the matters related to food. The paper analyses how al-Qara??w? interprets the relevant Qur’anic verses and the Prophetic traditions (ah?d?th) and attempts to unearth the underlying juristic principles that he relies on for his particular opinions. Also, the paper compares his interpretive strategies with those of the classical jurists. Theoretically, the paper revisits al-Qara??w?’s approach and frames it with reference to Fazlur Rahman’s classification of different reform strategies in Islam. In this light, the article concludes that al-Qara??w?’s approach seems to be what Fazlur Rahman calls ‘reform through tradition.

Acquisto a non domino da parte del servus fugitivus: un rincorrersi tra regole ed eccezioni

[A Purchase a non domino by servus fugitivus: rule and exception]. The author, after a presentation of hypotheses of the in bonis habere, inspects the case of the Purchase a non domino by servus fugitivus and examines the different interpretations of classical jurists.

Hak wasiat anak dalam kandungan perspektif hukum Islam

This study discusses the waṣiya right of the fetus (janīn) in the context of Islamic law. Islamic law in this regard is the opinion of the most powerful jurists in the four best known sects (mażhab). Being something that is worth mentioning is due to the lack of human attention and the legality that surrounds it to the rights of janīn. This study aims to find out how Islamic law protects the rights of children in the content with the strongest opinions available. This research is a literature study by collecting data in classic jurisprudence books to find out the opinions and opinions of past jurists and other supporting articles, normative jurisprudence that seeks to extract values and norms from the opinions of classical jurists. or any of the arguments contained in the law, and uses a descriptive approach intended to illustrate in general the scope of Islamic law in relation to the rights of the janīn. This study of Islamic law produces the strongest opinions of any internal debate in a sect, and the most salient opinion of all mażhab on a waṣiya right of the janīn.