7.  Diligence.

7. 1 Its definition.

a) Linguistically: diligence means to do one’s utmost to carry out or realize a given matter, either it is physical or abstract.

b) Its deepest meaning: It is to strive to perceive and deduce the legal injunctions from their sources.

The legitimacy of diligence is affirmed by logic and in the Noble Koran as well as in the Sunna. The Almighty Allah said: «And those who respond to their Lord and establish prayer and who in matters other than those God has decreed, conduct them by mutual consultation, and who expend of what we have bestowed on them». [Surat Ash Shûra/The Consultation, 38].

Consultation, in fact, requires making every effort to seek the truth about a given matter.

The prophet -may peace be upon him- said: «If a judge strives and hits the mark concerning his judgment, he will be rewarded twice. And if he strives and misses the mark, he will be rewarded once». [Reported by Muslim, El Boukhari and Ahmed].

When the prophet -may peace be upon him- sent Muâad Bnu Djabal to Yemen he said: «How are you going to judge if a matter is exposed to you? Muâad answered: I judge according to Allah’s Book. The prophet said: «And if it is not mentioned in Allah’s Book? He answered: « So I judge in accordance with the prophet’s Sunna. The prophet said: « and if it is not mentioned in the messenger’ Sunna? He said: I exert myself to the utmost of my power and I spare no pains. Muâad said: then the prophet beat me on my chest and said: «praise be to Allah who directed the messenger of His Messenger to what pleases God and His messenger ». [Reported by Ahmed, Abu Dawud and Et Tirmidi].

7. 2 Its conditions.

Diligence can be only if the following requirements are fulfilled:

1- The diligent must be cognizant of the Noble Koran, especially the verses that contain the injunctions. The diligent is not obliged to learn the verses by heart.

2- He must know the reasons of revelation, for they help him understand the texts.

3- He must be well acquainted with the Sunna of the prophet -may peace be upon him- mainly the Ahadith that contain divine injunctions.

4- He has to be aware of the circumstances in which the Hadith is said in order to understand its meaning and purpose.

5- He must be cognizant of the abrogated and the abrogating texts in the Koran and the Sunna. This is required to know the texts that the diligent is going to use as proofs in order to confirm a given divine injunction.

6- He must be acquainted with the rules of the Arabic language. In addition, he has to be aware of the Arabic words’ connotations and denotations. This enables the diligent to understand the meaning of the verses and the Ahadith that embody the injunctions. 

7- He must know the rudiments of Fiqh (Ussul El Fiqh). The diligent needs means and Ussul rules. The latter help him to deduce the injunctions from a verse or a Hadith.

8- He must know the matters upon which there was unanimity. By knowing these matters, the diligent do not fall in contradictions with the affirmed unanimity.

9- The diligent must be aware of people statuses and customs. This leads him to a right diligence and also helps him to better realize the occurrences upon which he applies the adequate texts.

10- He must have knowledge of the main aims of the Islamic Sharia which the Koran and the Sunna confirmed and preserved.

11- He must be just and pious. These criteria are required not for the rightness of his diligence but rather for the acceptance of his Fatawa.

7. 3 The types of diligent.

1- The independent diligent: He is the one who is eligible to deduce the practical divine injunctions from their detailed arguments (in the Koran and Sunna) without limiting himself to a specific doctrine. Among them figures:

¨  Fuqaha among the Sahaba.

- In Medina: The four Orthodox caliph, Zeid bnu Thabit, Aubei bnu Kaâb, Abd Allah bnu Omar, Aicha (the Mother of the Faithful) - may God be pleased with them.

- In Mecca: Abdul Allah bnu Abbas.

- In Cufa: Abdul Allah bnu Massôud.

- In Basra: Anas bnu Malik, Abu Mussa El Ashâari.

- In Damascus: Muâad bnu Djabal.

In Egypt: Abdu Allah bnu Amru bnu Al Ass.

¨ The Tabiîn’s Fuqaha.

- In Medina: Ourwa bnu Ezoubeir, Saîd bnu El Mussaib.

- In Cufa: Saîd bnu Djâbir.

¨ The four Imams, El Awzaîi, Layth bnu Saâd…

2- The dependant diligent: He is the one who has received education from a specific Fiqh School and restricted himself to its Fiqh. He imitates his Imam and never breaks away with his Fiqh.

There are three types of a dependant diligent:

a) A diligent that imitates his Imam in his methods of deduction like Abu Yucef, Muhammad Ibnu Hassan and Zufar who imitate the Hanafi Doctrine, Achhab bnu Al Qa’ssim who imitates the Maliki doctrine, the judge Abu Yaâla and Ibnu Taymia who imitate the Hanbali doctrine.

b) The diligent who sticks only to the rudiments of his Imam’s doctrine. He joins the branches with the principles that are found in this doctrine, but strives in the frame of its rules. This is called doctrinal diligence. The famous diligents of this kind are: Imam Ethawri, El Karkhi and Esarkhassi in the Hanafi doctrine.

c) The diligent who chooses between the reported opinions of a given doctrine relying on the power of the arguments or on the extent of being appropriate to a given epoch (this is more appropriate, this is more suitable for analogy and this is more lenient with people). Abu Bakr Ar-Razi, known as Al Djassass in the Hanafi doctrine is an example of those who follow this method. He is a diligent who knows well his Imam’s doctrine and is more cognizant of his arguments.

3- The Specialized diligent: He is the one who is specialized in a given science. This is allowable mainly because in this epoch there are a lot of specialties like the diligent in matters of analogy, the diligent in matters of Al Fara’idh (shares of inheritance)…

7. 4 The division of diligence/ the possibility of dividing diligence.

Imam Abu Hâmid El Ghazali- in his book El Mustasfa (The Pure) and many other Imams advocated the idea that diligence can be divided. In other words, it is allowable for the Ulemas to strive only in some matters. For example, some Ulemas specialize in the domain of the shares of inheritance, others in legal policies and others in commercial matters.

In fact, this method will enable and facilitate for the ulemas to deepen their researches in the domains they are specialized in. 

7. 5 The domain of diligence.

Diligence is possible only if the practical divine injunction has no absolute or clear proof. It is not allowed in the matters that have absolute references (proofs). For instance, the obligation of prayer and the number of its prostrations, the things that are forbidden by firm texts like the prohibition of usury and the killing of a person without a legal reason… All these matters and so many others that are mentioned in the Koran or in the Sunna are not in need to diligence.

7. 6 The types of diligence.

1- The diligence that is based on picking out or selecting opinions.

The Fiqh patrimony contains a lot of divergent opinions. The thing that led to the expansion of diligence. In other words, it permitted for the diligent and the Muftees to select the opinion that relies on a right argument and strong evidence. For instance, the opinion of the Ulemas concerning the divorce in which the husband utters the word “divorce” many times is not the same. Some of them see that it is a disunion in which the husband has no right to restore his divorcee (i.e. irrevocable divorce with long interval) except if the latter gets divorced or widowed from a second marriage. But Ibnu taymia, Ibnu El Qaim and others claim that divorce in such a case takes no effect because it is a heretical one. The Muftee, in that case, can select the most appropriate opinion.

2- The innovative diligence.

It was obligatory for the diligent to go along with the new matters that appeared, and to give their Islamic stance: if they are allowed, banned or prohibited.

Among the matters that are worthy to be mentioned, we state: organs transplantation, womb’s chartering, the economic transactions…

The innovative diligence handles either the new matters or the matters that have been already dealt with, but by another manner or with new additions. For example, the matter of the one who is charged with zakat (legal alms) in case of tenanting land. Some of the Ulemas say that Zakat is to be paid by the landlord (the land owner), and others claim that it should be paid by the tenant. Ibnu Ruched, in his book “The Beginning of the Diligent”, advocated that this divergence in opinions is due to Zakat itself. That is, their difference is on what the legal alms should be paid? Is it on the land or on the crops that it produces; he said that Zakat is to be paid on both of them.

7. 7 Aspects of diligence.

1- Fatawa (legal opinion): It means to give a legal opinion about a given matter. This fact had been existed since the Sahaba’s epoch and the most famous Muftees at that period were: Muâad bnu Djabal, Omar Ibnu Al Khatab, zeid bnu Thabit and so many others -may God be pleased with them. Nowadays, the ways and the means of Fatawa differ and vary through mosques and Medias, and some of the Fatawa are collected in books, among them:

¨     Rachid Reda’s Fatawa that are diffused in El Manar Magazine.

¨     The Summary of the Egyptian Fatawa of Sheikh El Islam Ibnu Taymia. These Fatawa are collected in 32 volumes.

¨     Muhammad Chaltat’s Fatawa: the study of the contemporary Muslim matters in his daily life.

¨     Contemporary fatawa of Sheikh Yucuf El-Qaradawi. Some of them are diffused in some  Magazines, among them:

- The Islamic Consciousness Magazine.

- The Islamic Fiqh Complex Magazine.

2- Studies and researches: They consist of high studies like Master, Doctorate and researches about Islamic Fiqh matters.

It is worthy mentioning that diligence is also required in the new matters that are related to medicine, economy…, it is also obligatory to keep away from the matters dealt with.

3- Codification: It is the codification of the Islamic Fiqh in specific articles in order to facilitate for the judges its application. This is on the one hand; on the other hand, it enables the litigants to be aware of this Fiqh. The first Magazine to be diffused in this domain is the Judicial Rules Magazine. This was at the end of the 13^th Hegirian century. The Ottoman Caliph (reign) established a committee of Ulemas for the codification of the proceeding rules on the light of the Hanafi Fiqh, then it issued the Family Code in 1336 Hegira which corresponds to 1917 AD. After that, there were many codes that had been issued and which were based on the Islamic Fiqh, among them:

- The Inheritance Code: it was issued in Egypt in 1943.

- The Mortmain Code: it was issued in Egypt in 1946.

- The Civil Code: it was issued in Yemen in 1979.

- The Legal Identification Code: it was issued in Yemen in 1976.

- The Jordanian Family Rights Code: it was issued in 1951.

- The Syrian Personal Status Code: it was issued in 1953.

- The Tunisian Individual Status Magazine: it was issued in 1956.

- The Moroccan Individual Status Code: it was issued in 1957.

- The Iraqi Individual Status Code: it was issued in 1959.

- The Algerian Family Code: it was issued in 1984.

¨      Some defects of the contemporary diligence.

1- Leaving out some divine sources: The diligent gives his legal opinion about a matter though it is mentioned in a text (Koran or Sunna). Originally, diligence should be resorted to only if there is no legal text about a given matter.

It was reported that the prophet -may peace be upon him- said to Muâad when he sent him to Yemen as a judge: «How are you going to judge if a matter is exposed to you? ». Muâad answered: I judge according to the Book of Allah. The prophet said: «If you find nothing in the Book of Allah? ». Muâad said: I judge according to the prophet’s Sunna. The prophet added: «If you find nothing in the prophet’s Sunna? ». Muâad answered: I strive and spare no effort. Muâad said: then the prophet -may peace be upon him- hit me on my chest and said: «Thanks be to Allah who guided the messenger of His Messenger to what pleases God and His messenger».

In a letter sent by the Commander of the Faithful, Omar Ibnu El-Khatab, to Shureih El-Qadi, he said: "Judge according to the Book of Allah, if nothing is mentioned in it resort to the Sunna of the prophet. If you find nothing in the Sunna, judge in accordance with what had been done by the pious. Otherwise, do your utmost and spare no effort".

2- The misunderstanding or the perversion of some texts: It means that the diligent resorts to the divine sources but he misinterprets them. For example prohibition in the following verse: « O you who believe! Most certainly intoxicants and gambling and idol worship and fortune telling are an abomination of Satan’s handiwork, so shun it, that you may prosper». [Surat Al-Mai’idah/The Table Spread, 90] is misinterpreted by the judge Saiîd El-Aâshmawi. According to him, the word “shun it” does not imply prohibition.

In reality, the word “Idjtinab” in the Arabic language which means “shunning something” implies total or absolute prohibition. Allah the Great joined the word “shunning” with polytheism, obscenity and enormities in His saying: « … And whoever venerates the sanctity of that ordained by God, it shall be better for him with his Lord. And permitted to you are all cattle, except that which has been recited to you. And shun the abomination of idols, and shun the speaking of falsehood». [Surat Al-Hajj/The Pilgrimage, from the verse 30].

3- The wrong analogy: It means the analogy that is made between two things which have different causes.

The Jews, for instance, allowed usury taking into account the following rule: “No economy without banks, and there are no banks without usurious benefits”. But Allah the Great forbade usury in His saying: « Those who devour usury will not stand except as one whom Satan has prostrated by his touch will stand. This is because they say: “trading is like usury”. But God has allowed trading and forbidden usury. So whoever takes the admonition from his Lord and desists, he shall have his past gains and his matter is for God, but whoever reverts, those are the inhabitants of the Fire, to dwell there forever». [Surat Al-Baqara/The Heifer, 275].

Another invalid analogy is that in which the marriage of a Muslim woman with a non Muslim man is compared to the marriage of a Muslim man with a non Muslim woman (Christian or Jewish).

4- Disregarding the affirmed unanimity: Among the conditions of diligence the knowledge of the matters upon which there was unanimity among the Ulemas, like the agreement of the Ulemas upon the lawfulness of the marriage of a Muslim man with a non Muslim woman, and their forbiddance of the marriage of a Muslim woman with a Muslim man even if he is a man of the Book (Christian or Jewish).

5- Ignoring the actualities of the era: Among the characteristics of this time the emergence of the “Justified Fiqh” (i.e. the Faqih in such Fiqh searches for warrants for his deeds and sayings). For example, allowing usury on the pretext of being one of the characteristics of the actual banks and the economic transactions.

There is also the appearance of another type of Fiqh which denies the recent developments like organs transplantation. According to this Fiqh, transplanting organs is forbidden because it is an infringement of the sacredness of human being. This Fiqh also rejects the new methods adopted in regulating the justice for they are not mentioned in any divine text.

6- Extravagance in considering the interest without any legal restrictions: As an example of this,  we mention: allowing adoption in order to realize the interests of the foundlings; performing the congregational Friday prayer in Sunday instead of Friday to ensure the gathering of a lot of persons in prayer; concealing the legal concessions because of being unnecessary like the shortening of prayers (i.e. instead of performing four prostrations in a prayer that requires four bowings, we shorten them to two only), and the joining of two prayers in one prayer (to pray the Isha prayer along with the Maghrib one) since the means of transportation are speedy and comfortable.

7. 8 Some examples about the contemporary diligence.

1- Cloning.

A. Its definition.

Linguistically: It means to make a copy of something that is identical to the original one.              

Its deepest meaning: It means to take a cell that contains genetic information from a living creature, and transplant it in an ovum which is emptied from its original information. This operation enables us to obtain a living that has similar genetic features as the original one.

B. The attitude of the Western Ulemas towards human cloning.

1-  The Supporters:

a) The Americans:

- Dr J. Fletcher: from the University of Virginia.

- Dr G. Seidel: from the University of Colorado.

- Dr L. Fleck: from the University of Michigan.

- Dr B. Hogan: from the Institute of Medicine of Hawardhiour.

- Dr H. Varmus: The General Director of the National Institute of Health, the principle sponsor of the governmental biological and medical researches in the United States of America.

b) The English:

- Dr R. Edward from Cambridge, the founder of the tube babies.

- Dr S. Fishel: from England.

- Dr R. Deech who is an embryologist.

Among their warrants, we mention:

1- To realize the desire of having children for the couples who are unable of procreation by cloning.

2- To realize the desire of a wealthy family by cloning a beloved departed.

3- To clone living creatures in order to satisfy one’s curiosity.

4- To form a generation of elite and excellent persons like the ones awarded the Noble Prize.

2- The opponents:

- Dr J. Riffin from America, he is an ecologist.

- Dr J. Rotblatt from Britain, he is a physicist and he received the Noble Prize.

Among their warrants, we mention:

1- Cloning contradicts human and civilized standards.

2- Cloning will sooner or later leads to a forged society in which immorality will be widespread.

3- The concealment of marriage system.

4- The concealment of human diversification.

C. The attitude of the Ulemas of Islam, the Assemblies and the Seminars towards human cloning.

The Ulemas agreed on its forbiddance, among them figures Dr Ujail Enashmi who is an Egyptian Muftee and the ex- dean of the Faculty of Sharia, and Dr Yucuf El-Qaradawi and so many others. They based their opinion on the following points:

1- Cloning is a matter that subverts religion, the self, the mind and posterity.

2- Cloning modifies Allah’s creatures and opposes the good human innateness. In addition, it makes an end to human diversification. Allah the Great said:

« God has cursed him, and he said to God: “I will surely take due share from your servants. And I will mislead them and I will create vain desires in them, and I will order them to slit the ears of the cattle (an ancient superstition). I will commend them and they will deface God’s creation. Whoever takes Satan for a guardian instead of God, he indeed suffers a manifest loss». [Surat An-Nissâ’/The women, 118-119].

« And from His signs is the creation of the heavens and the earth, and the diversity of your language and your colors, surely in that are signs for those who posses knowledge». [Surat Ar-Rûm/The Romans, 22].        

The prophet -may peace be upon him- said: «Cursed are the tattooed and those who practice tattoo… The ones who modify what Allah has created». [Agreed on according to Ibnu Massoud].

3- Cloning humbles human’s dignity. Allah the Great said: « And we have honored the children of Adam, provided them with means of transportation on land and sea, and we have bestowed on them good things, and we have preferred them above many of those we created». [Surat Al-Isrâ’/The Nocturnal trip, 70]. This is through subjecting mankind to experiences and trifling with human genes and chromosomes.

4- Cloning subverts the family:

- It results from it children without marriage.

- It demolishes the senses of paternity and maternity.

- It destroys the lineage relations.

- It devastates the system of genes.

5- Cloning dallies with Allah’s creatures. The Almighty Allah said:

« Indeed we have created everything in due proportion». [Surat Al-Qamar/The Moon, 49].

« Indeed we have created mankind of the best stature (mould)». [Surat At-Teen/The Fig, 4].

« And of everything we have created pairs that you may reflect». [Surat Az-Zâriat/The Winds that Scatter, 49].

« Glory be to Him, who created the components of couples of every kind of what the ground caused to grow, and of themselves (human being) and of what you do not know». [Surat Yâ- Sîn, 36].

« To God belongs the Dominion of the heavens and the earth, He creates what He pleases, He bestows to whom He pleases females, and He bestows to whom He pleases the males or He bestows both males and females, and he makes barren whom He pleases. Surely He is the all-Knowing, the All-powerful». [Surat Ash-Shûra/The Consultation, 49- 50].

« God is the one who shapes you in the womb as He pleases; there is no god but He, the Almighty, the All-Wise». [Surat Al-Imran/The Family of Imran, 6]. All these arguments and verses affirm the prohibition of human cloning. It is forbidden as to prevent corruption and depravity.

In fact, fending off harms should have priority over realizing interests and benefits.

Many Assemblies and Fiqh Seminars hold the same opinion concerning human cloning, among them:

·        The Ninth Fiqh and Medical Assembly: It was held by the Islamic Fiqh Complex (in its tenth assembly) and the Islamic Congress Organization in Casa Blanca from Safar 8^th to Safar 11^th, 1418 Hegira which corresponds to June 14^th to June 17^th, 1997 AD. Among its recommendations, we mention:

1- To condemn all the cases in which a third element (rather than the spouses) contributes in the marital relationship: a womb, an ovum, a spermatozoon or a cell for cloning.

2- Appeal to the nation for enacting the necessary legal legislations in order to close the doors to the foreign authorities, research foundations or foreign experts. This call aims at deterring them from taking the Islamic countries as a field of their experiences on human cloning and as a suitable arena for its circulation.

·        The Assembly of the Islamic Fiqh complex: It was held in Saoudi Arabia from Safar 23^rd to Safar 28^th 1418 Hegira which corresponds to June 28^th until July 3^rd, 1997 AD. It was the tenth congress that was held by this complex. According to it, cloning means to procreate a living creature either by taking off a nucleus of a living cell and transplant it in an ovum which is emptied of its nucleus, or by dividing the fertilized ovum before the differentiation of the organs and tissues. 

Allah the Great said: « And certainly we fashioned mankind from the quintessence of clay. Then we placed (mankind) as a small quantity of sperm in a safe lodging firmly established. Then we fashioned the small quantity of sperm into something which clings, and then we fashioned the clinging thing into a chewed lump of flesh, then we made out of the chewed flesh bones, then we clothed the bones with intact flesh, then We developed out of it another creature; so blessed be Allah, the best to create ». [Surat Al-Mu’aminoon/ The Unbelievers, from 12 to 14].

The Assembly adopted some resolutions that are included in the ordinance number 10/D/2/100 concerning human cloning. They are:

1- Forbidding human cloning by the two above mentioned methods or by other methods that lead to human reproduction.

 2- To condemn all the cases in which a third element (rather than the spouses) contributes in the marital relationship: a womb, an ovum, a spermatozoon or a cell for cloning.

3- Appeal to the nation for enacting the necessary legal legislations in order to close the doors to the foreign authorities, research foundation or foreign experts. This call aims at deterring them from taking the Islamic countries as a field of their experiences on human cloning and as a suitable arena for its circulation.

2- Organ donation.

A- Its legal proofs.

1- Allah the Great said: «…And prefer others above themselves, even though poverty may afflict them. And whoever is saved from the greed of his own soul, those are the ones who prosper». [Surat Al-Hashr/ The Gathering, from the verse 9].

2- Allah the Great also said: «…But whoever is constrained by necessity, not out of insolence, nor with the intention of repeating it, then no sin is on him. Surely God is All-Forgiving, All Merciful». [Surat Al-Baqara/The Heifer, from the verse 173].

3- The prophet also said: « The believer is like a brick for his brother, each one supports the other». [Reported by El-Boukhari].

4- The prophet -may peace be upon him- said: «None of you believes in Allah until he wishes for his brother what he wishes for himself». [Reported by El-Boukhari]               

5- The Ulemas drew an analogy between blood transfusion and organ donation (i.e. since the former is permissible so is the latter).

6- The Ulemas too drew an analogy between sacrificing the self in case of Djihad (fight for the sake of Allah) and organ donation.

7- The Ulemas based on some fiqh rules, among them:

¨ The necessity legitimizes what is forbidden.

¨ Harm is to be ceased.

¨ If two perversities are opposed, the less harmful is to be done.

¨ When a matter contracts, it broadens.

¨ Hardship brings facilitation.

¨ The less harmful of two evil deeds is to be chosen.

¨ Necessity can be taken for obligation.

B- The conditions of allowing organ donation.

1- It is not permissible to trade with human organs (their sale is forbidden).

2- It is not permissible to donate an organ upon which the life of the one who grants it depends like the heart, the liver and the lungs, because in such a case it will be a suicide.

3- It is not permissible to donate genitals (sexual organs), testicles or ovary because there may lead to the blending of lineage.

4- The person who donates his organ should be eligible for donation and willing to do so. In other words, he should not be young, insane or idiotic.

5- To know the immediate and the postponed damages that result from lopping the organ.

6- To know the damages that are intended to be warded off from the person who needs this organ by examining his state of health.

7- To know the benefits that result from this donation (concerning the person to whom the organ is donated).

8- The one to whom  the organ is donated must not be a disbeliever who fights the Muslims, an apostate who announces his apostasy publicly, an adulterer who is married, a highway robber or a murderer who deserves retribution.

9- Organ donation must be the only means to rescue the life of a person or his organ that is exposed to damage (i.e. there must be no other possibility to save him like transplanting an artificial organ or an organ of a dead).

The rule which stipulates that "the less harmful is to be chosen" is contingent upon the inability to ward the harms off.

Al-îz bnu abd Es-Sallam said in his book "The Bases of the Rules", part I, page 98: « If it is possible to attain the interests and fend off the harms in case interests and harms are gathered together, we do so. But if there is no possibility to do so, we see if the harm is greater than the interest, we fend it off without taking heed of the losing of the interest».

10- It is forbidden to donate the organ which is the only one that the donator possesses even if it does not lead to the latter’s death like the tongue, the pancreas, the eye in case the other eye is destructed.

The Resolution of the Fiqh Complex: it was held in Mecca in 1405 Hegira which corresponds to 1985 AD. In its eight sessions, it stipulated: «To take out an organ from a living person and transplant it in another who is in need to this organ, either to rescue his life or to restore one of his principle functions, is allowable». This action is not inconsistent with the donator’s dignity, and it is of great benefit and help for the one to whom the organ is donated. It is lawful and laudable if it fulfills the following conditions:

1- The donator must grant his organ voluntarily without being forced.

2- Taking out the organ must not harm the donator or disrupt his ordinary life. The rule says: harm can not be ceased by harm. In case harm is treated by another, there will be a destruction of the self, the thing that is prohibited by our religion.

3- Transplanting the organ must be the sole means to save or cure the patient.

4- The success of the operations of both taking out the organ and its transplantation should have been proved successful (always or most of the times).

The decision of the Saudi Arabia Great Ulemas Organization: The decision N° 99 issued in Dhul Qiîda 11^th, 1402 Hegira stipulates:

- The permissibility to take out an organ or part of it from a Muslim or a non Muslim in case of necessity, and if the rate of its success is very great.

- The permissibility to take out an organ or part of it from a dead person and transplant it in the body of a Muslim if there will be no turmoil, and if the transplantation will be successful.

- The permissibility to donate an organ or part of it for a Muslim who is in need to it.

3- Artificial impregnation.       

A) Its kinds.

1- The internal impregnation: It means to take the sperm of a man and inject it in his wife’s vagina or womb.

2- The external impregnation: It means to take the sperm of the husband and the ovum of his wife and fertilize the latter in a tube. Then, the fertilized ovum will be transplanted in the womb of the wife.

B) Its stance.

The artificial impregnation is allowed if it fulfils the following conditions:

1- The contraction of marriage must be legal.

2- The impregnation must be done during their matrimonial life and not after divorce or death.

3- The impregnation must happen between the sperm of the husband and the ovum of the wife without the intervention of any third part either a womb (the chartering of wombs or the substituted mother), an ovum or a spermatozoon.

4- Bank transaction and usurious benefits.

The usurious system is a disaster for humanity; it afflicts its faith, values and economic life.

The Islamic system is based on principles and pillars that vouch for the development and the promotion of the economy far from any kind of exploitation and oppression, among them:  

a)     The application of the Islamic Sharia in any investment activity and others.

b) Shunning any transaction in which usury is involved. Allah the great said: «Those who devour usury will not stand except as one whom Satan was prostrated by his touch will stand. This is because they say “Trading is like usury”. But God has allowed trading and forbidden usury. So whoever take the admonition from his Lord and desists, he shall have his past gains and his matter is for God, but whoever reverts those are the inhabitants of the Fire, to dwell there forever». [Surat Al Baqara/The Heifer, 275]. He also said: « O you who believe! Do not devour usury multiplying it over, and fear God that you may prosper». [ Surat Al Imran/ The Family of Imran, 130].

c) Performing all the banking transactions that serve the economic life.

These principles are affirmed in the decrees of many Fiqh complexes.

·    The decree of the Congress of the Islamic Researches Complex held in Cairo in 1975.

Concerning the banking transactions, the Ulemas of the second Islamic Researches Congress agreed on the following points:

1- All the benefits that result from the bank loans are considered as usury and therefore, they are forbidden. There is no distinction between the loan for consumption and the loan for production. The Noble Koran as well as the Sunna forbade the two kinds clearly and absolutely.

2) Usury -either a lot or a little of it- is forbidden as its insight understanding indicates.

3) Lending and borrowing by using usury is prohibited, and there is no necessity or obligation that many allow it.

4) All the bank accounts that contain interests are usurious transactions which are forbidden by our religion.   

·        The first Congress of the Islamic Bank in Dubai: It was held in the Islamic Central Bank of Dubai in the United Arab Emirates between Djumadi Et-Thânia 23^rd and 22^nd, 1399 Hegira which corresponds to May 20^th and 22^nd, 1979 AD. It dealt with and studied the legal Fiqh and economic matters that are related to the functions of the Islamic Bank. It treated these functions in a satisfying manner and even the conventioneers among them some Islamic Fuqaha, economists and men of law, were pleased with it because of its definite benefit and its conformity with the injunctions of the Islamic Sharia.

This congress appealed all the Islamic countries to establish their banks on the bases of the Islamic banks and to provide them with the necessary help and support that enable them to manage their works easily, and execute their functions in a manner which support the economies of the Islamic nations and achieve collaboration between them.

·    The Second Congress of the Islamic Bank: it was held in the period between Djumadi Et-Thânia 6^th to Djumadi Et-Thânia 8^th, 1403 Hegira which corresponds to March 21^st to March 23^rd, 1983 AD. It stipulated:

1- The congress affirms that what is named “benefit” by the western economists and their followers is usury that is forbidden by our religion.

2- The congress invited the Muslims to deposit their money in the Islamic banks, institutions or firms that are inside the Arabic and the Islamic countries or outside of them. The benefits that the Muslims receive when depositing their money in usurious banks are illegal, so they must discard them by sparing them in the matters of the Muslims. The continuation of disposing one's money in usurious banks when it is not necessary is forbidden.

3- The congress commanded the encouragement of the established Islamic banks and the setting up of many others so that their benefits comprehend all levels.

·    The Third Congress of the Islamic Bank: it was held in the period between Safar 9^th and Safar 11^th, 1406 Hegira which corresponds respectively to October 25^th and October 27^th, 1985 AD.

The first and the second articles of the Fatawa given by the Ulemas committee of the congress contain the following points:             

1- The establishment of Islamic banks on legal basis and according to what Islam stipulates, as concerns the prohibition of usury, benightedness and hazard, is a legal necessity and a basic interest among the interests of the nation.

2- Due to the services performed by the Islamic banks that concern the facilitation of the local and international trade and the change of currencies, the collection of money from the Muslims and their legal investment in the economic and social domains, it was decided that the establishment of Islamic banks where Muslims exist is a collective duty i.e. if it is done by some people, the others will not be sinful, and if it is done by none every one is going to be so.

·    The Islamic Fiqh Complex in Djadda: Concerning the inquiries of the Islamic Bank for Development about the loans services, the first decree of the Complex third session, which was held in Amman from Safar 8^th to Safar 13^th, 1407 Hegira which corresponds to October 11^th to October 16^th, 1986 AD stipulated: «Any bonus /increment to the usual services is forbidden because it falls under the usury that Islam prohibited».

7. 9 The Collective diligence.

1- During the epochs of the Sahaba.  

Edarami and El-Bahiqi reported from Maimun bnu Mahran and said: «when Abu Bakr had to judge between the adversaries, he referred to the Koran, if he found something, he gave his judgment according to it. Otherwise, he judged according to the prophet' Sunna. If he found nothing in the Sunna, he asked the Muslims and said: I have to judge in this or that matter, did you know if the messenger of Allah had already given a judgment in such a matter? If the Muslims asserted that the prophet did, Abu Bakr said: praise be to Allah who made among us those who learn from our prophet, but if he found nothing in the Sunna, he gathered the chiefs and the best people to look after the matter. If they agreed unanimously upon a decision, he judged according to it».

Omar Ibnu El-Khatab was doing the same. If a matter is exposed to the Commander of the Faithful and found no judgment in the Book and the Sunna, he gathered the prophet’s companions and consult with them.

¨        Examples of this kind of diligence.

a- Diligence in the matter of caliphate (succession): there was a disagreement among the Sahaba about the one who succeed (to the leading of the Muslims), then they all agreed on Abu Bakr due to his leading of the prayer just before the death of the prophet -may peace be upon him.

b- Diligence in the matter of giving a share of inheritance to the full brothers with the existence of their half brothers (from the part of the mother). In fact Omar Ibnu El-Khatab decided to include the full brothers in the 1/3 that is the prescribed portion of the half brothers. Originally, the full brothers have no prescribed shares of inheritance whereas the half brothers have their fixed amount which is 1/3 if they are more than one and 1/6 if there is only one. The full brothers inherit what remain of the heritage after the ones who have their fixed amounts get their shares, and if nothing is remained they will have nothing.

For example: A woman died and left her husband, her mother, three half brothers (from the part of the mother), two full sisters and a full brother. Their shares of inheritance will be as follow:

The husband: 1/2 because the woman has no child.

The mother: 1/6 because the woman has brothers and sisters.

The three half brothers: 1/3 because they are three and there is no Hâjib (a concealing heir).

The two full sisters and the brother: they divide what is remained among them according to the rule which stipulates: "the share of a male is proportionate to that of two females".

And since there is nothing that is left for them in that case, Omar Ibnu El-Khatab decided to include the full brothers in the 1/3 of the half brothers for they are all from the same mother (i.e. they divide the 1/3 among them equally and the above mentioned ruled will be concealed)

c- Diligence in the matter of pestilence.

In their way to Damascus, Omar Ibnu El-Khatab and some of the Sahaba were informed that pestilence affected the whole of Damascus. So, he consulted the Sahaba about continuing their way or returning back as to flee from the plague. The Sahaba differed in opinion, some of them agreed on continuing and others disagreed. Then, Abu Ubaida bnu El-Djarah said: «O Omar! Do you flee what is destined? Omar Ibnu El-Khatab answered: O Abi Ubaida! I wish if another said it. Yes, we flee what is fated to go to meet what is destined. After a while, Abdu Erahman bnu Aouf who lagged behind the caravan arrived and when he was informed he said: I know what the prophet -may peace be upon him- said about this. Omar said: you are here the trustee and the reliable, so tell us what you know? I heard the prophet saying: « If you hear that a country is affected by this plague (pestilence), do not go to it, and if it is affected while you are in it, do not escape from it». [A sound Hadith reported by El-Boukhari, Muslim and Ahmad from Abdu Erahman bnu Aouf].

It was also reported from Aussama bnu Zayed that the prophet -may peace be upon him- said: «If you hear of pestilence in a given country do not go there, an if it affects the country where you are do not flee it».

2- During the epoch of the Tabiîn (the Sahaba’s followers).

Many schools were emerged and the most apparent ones were that of the people of Hadith and that of the diligent (people of opinion).

a) The people of Hadith’ school in Hedjaz.

Hedjaz is the place of revelation, the cradle of the prophet’ Sunna and the source of Hadith. The origins of this school stretch to the epoch of the Sahaba like Abdul Allah bnu Omar bnu El-Khatab. Among the Ulemas of this school, we mention: Saiîd bnu El-Mussaib and Urwa bnu Ez-Zubeir.

This school was characterized by:

- Considering the Hadith and giving precedence to it over opinion.

- The abhorrence of questioning about the matters that did not happen.

b) The people of opinion’ school in Iraq. Its origins come back to the Sahaba’s epoch like Omar bnu El-Khatab, Abdul Allah bnu Massûd…

Among its Ulemas, we mention: Ibrahim Enukhaiî, Shureih bnu El-Hârith El-qâdi.

This school was characterized by:

- Giving much consideration to opinion and none fearing of delivering the Fatawa.

- Suggesting issues that did not occur and giving solutions to them.

3- During the epoch of the diligent Imams.

It was the golden epoch of Fiqh diligence; many great Fiqh doctrines were established: Imam Al-Awzaîi doctrine in Damascus and that of Layth bnu Saâd in Egypt…

This epoch witnessed many occurrences, new developments, debates and controversies…

The great doctrines are ascribed to the Fuqaha of this epoch like: Imam Ahmed, Ech-Chafîi, Abu Hanifa, Malik…etc. These doctrines represent a common trend in diligence.

4- In the contemporary times.   

Many new matters appear in different domains due to the revolutions that the modern time witness especially in the domain of medicine and economics like: human cloning, the donation of human organs and the different bank and investment transactions. All these are new matters that need attention and consideration from the part of eligible Fuqaha and the experts in this various domains. This is what was translated into actions through the Fiqh complexes and international congresses. (See the details in the previously mentioned point).

7. 10 The criteria of a sound diligence.

1- To observe balance and moderation: These two features between the legal texts and the aims of the Islamic Sharia, and between what is definitive in the Sharia and the requirements of modern times. Allah the Great said: « And so we have appointed you as a just and distinguished nation, to be witnesses over all people and the Messenger is a witness over you, and we assigned the former Qibla merely to show who should follow the messenger and who would turn back. Indeed, a hard test, but not for those whom God has guided. God would never leave your faith to waste. Surely God is towards all people full of compassion, Most Merciful». [Surat Al-Baqara/ The Heifer, 143].

In fact, this requires as it was reported by El-Qardawi in his book entitled The modern Diligence between Discipline and Excess, page 91 “a knowledge that preserves us from judging with ignorance, and devoutness that protects us from judging with inclination and moderation that prevents us from extravagance and negligence”

2- To be limited to the arena of diligence: diligence is allowed only in dubious matters and not in absolute ones. The absolute and the definitive texts preserve the bases of religion, and the dubious texts responds to the new issues and the requirements of the modern time.

3- To gather between the knowledge of Fiqh and Hadith: The learner of Fiqh without the knowledge of Hadith may base his judgments upon weak or unfounded Ahadith, and the learner of Hadith without Fiqh is exposed to loss. The prophet -may peace be upon him- said: «The one whom Allah likes makes him skilled in religion». [Agreed on].

Sofiane Ethawri said: «If any one of us is a judge, he will beats with palm branches a Faqih who does not learn Hadith and a learner of Hadith who does not learn Fiqh». 

4- To resort to experts: In the modern times, practicing diligence requires dealing with the new and the critical developments like cloning, organ transplantation, organ donation… The Almighty Allah said:

«…So ask any knowledgeable one! ». [Surat Al-Furqân/ The Criterion, from the verse 59].

 «…And no one can tell you like the One who is All-Aware». [Surat Fâtir/ The Originator, from the verse 14].

«…And if you do not know that, ask the people of earlier scripture…». [Surat An-Nahl/ The Bee, from the verse 43]. 

5- To gather between the individual diligence and the collective one: We can not dispense with the individual diligence of the Ulemas which are the tributaries of the collective diligence represented in the Fiqh complexes and international conferences.

6- To exert oneself to deduce the practical divine injunctions from their detailed arguments in respect to Muâad bnu Djabal’ saying: «I exert myself and spare no effort».

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