عنوان المقالة:الماجريات الفقهية عند علماء الغرب الإسلامي: نماذج من نوازل الأحوال الشخصية distinct jurisprudence in the history of Islamic legislation and jurisprudence
تعتبر الماجريات ـ ما جرى الاتفاق بين القضاة والمفتين والموثقين على العمل به ـ عند فقهاء المالكية بالغرب الإسلامي، فنا فقهيا من فنون فقه القضاء واالفتيا، ولا يمكن للباحث وللمتبع إدراك أهميته وماهيته، وإدراك قيمته الفقهية والقضائية والاجتماعية، دون النظر إليه باعتباره من ثمار المشروع الحضاري؛ العلمي والسياسي والثقافي لدول الغرب الإسلامي منذ القرن الثاني الهجري. الذي كان من أهم أوراشه الكبرى، بناء المؤسسة القضائية وتنظيمها، باعتبارها أخطر مؤسسات الدولة بعد الحكم، وقبل الجيش وغيرها من أركان الدولة. لأن القضاء هو ضامن العدل والإنصاف، وصمام امان المجتمع واستقراره.
الملخص الانجليزي
This research presents a distinct jurisprudence in the history of Islamic legislation and jurisprudence. It is known as the "Majeryat", or what was done with the work, a jurisprudence that was unique to the Maliki scholars of the Islamic West without the rest of the schools of jurisprudence.
The meaning of "what has been done" is the Islamic rulings that the jurists agreed to carry out in the fatwa and the judiciary, in the context of legalization and regulation of the judiciary and fatwa. We have referred to the Islamic West in the region currently geographically covered by countries: Libya, Tunisia, Algeria, Morocco, Andalusia and Mauritania.
This study reviews this jurisprudence, in the introduction, three major sections, and a conclusion. We dedicated the introduction to the cultural, civi and historical context of the Majeryat. It does not realize its jurisprudence, jurisprudence and social importance, apart from being a building block in the project of building the edifice of the judicial institution in the Islamic West, And the endoscopy for its work, structure and procedures. And the legislation and jurisprudence required by all of this, By writing in codification and doctrinal legalization.
We have made the first section, an entry point for rooting and theoretical reversion to the jurisprudence of the Majeryat. In terms of its definition, its divisions, the positions of the jurists in its conduct, and the conditions they consider to conduct the work.
Then the stature of the judgment in action, and its effects, and the scholars’ efforts to classify in this art. Care for it until the knowledge of “Majeryat” a condition for the judiciary to take over and to issue the fatwa.
The provision of the necessity of the judiciary “ma jara bih al’amal” became writing in leaflets, and decisions to appoint judges and advisers. The judgment and the judiciary also take into account non-maliki scholars, when they became judges.
The second section: we presented seven issues in personal status. First: The events of the Moroccans “Daro Athikate” house of trust, in all the Moroccan cities and villages since the 10th Hijri century. It is a social institution; it has never been known in the history of human civilization. It is a large house, made up of houses equipped with mattresses and furniture, sponsored and looked after by trustworthy women, which was allocated to the wife during the application of divorce suits, and the husband was obliged to spend the time she had stayed in the trust house.
The second: “Alkado wa Siayah” Morocco's jurists established a new family financial system that has never been known by Islamic jurisprudence, They have given women the right to the property of their husbands and relatives, as their partner in the development of their wealth, once their work has been legally or customary in the spouse's or relative's property, and their legitimate right to inherit is exercised by women. The Moroccan judiciary is now on this action. Western legislation has introduced modern regulations in the provision of property acquired during the marriage by the spouses joint effort.
The fourth, fifth and sixth issues, in which the jurists worked to prohibit marriage in the face of the exterminating of three women, contrary to the Islamic text and the consensus of the jurists of other faiths.
They are dilute at corruption, preventing communal values from being mislocated, and disrupting family relations. They are: the one who is in her waiting period “iddah” from a irrevocable divorce; or from death; or the one who she married and had intercourse with new husband during her “iddah
ذ/د.كمال بلحركة | KAMAL BELHERKATE | 22474