A Comparative Research on the Principles of ‘Alā al-yad and Al-kharāj and the Genealogy of their Narrational Chain of Transmission
Journal Title: فقه و اصول - Year 2017, Vol 49, Issue 108
Abstract
The evidence of legal rules is sometimes a tradition with different impression, sometimes it is of Sh‘īa origin, sometimes of Sunnī origin, and sometimes sharing both Shī‘a and Sunnī. With a brief explanation of the principles of ‘alā al-yad (owning an object by having it at one’s disposal), kharāj (tribute), “assessment of significance”, and the “genealogy” of the hadith, ‘alā al-yad mā akhadhat ḥattā tu’addiya (It is incumbent upon man to give back what is at one’s disposal) and kharāj bi al-ḍāmān (tribute by surety) from the two major sects (Sunnī and Shī‘a), the present article explores into and researches about the origin of these two hadiths. The renowned majority of the Sunnī and Shī‘a jurists consider the principle of ‘alā al-yad applicable to sound contract, the benefits of mustawfāt (secondary benefits) and non-mustaqfāt of corrupt contract, and misappropriation; and do not consider the principle of kharāj applicable corrupt contract and misappropriation. Ibn Ḥamza from among the Shī‘as and Abū Ḥanīfa and Abū Yūsuf from among the Sunnīs consider kharāj as included in corrupt contract and misappropriation. The writer presumes surety (ḍamān) in the two principles as homonyms and the relation between the two as divergent and, like the Shī‘a jurists, finds the hadith “It is incumbent upon man to give back what is at one’s disposal” and “tribute by surety” to be of Sunnī origin. Furthermore, by providing the time these two hadiths entered the Shī‘a sources and the motivation for relying on them, he (the writer) considers as inefficient the most outstanding narrative reasons for the principles ‘alā al-yad and kharāj for the Shī‘a jurists and just to be presumed as confirming other reasons.
Authors and Affiliations
Hadi Mesbah, Husayn Saberi
Keywords
Related Articles
- EP ID EP191169
- DOI 10.22067/fiqh.v0i0.27063
- Views 99
- Downloads 0
Who are the Akhbāris?
Akhbārism is one of the most important Shiite jurisprudential schools. It prevailed from the early eleventh century for about two hundred years as the mainstream in some jurisprudence arenas. In a number of jurisprudenti...
An exploration into the concept of ‘assisting with sins’ in imami jurisprudence opinions
The notion ‘assisting with sins’ is a rule founded upon argumentations from the Qur’an and tradition, reason and consensus, and its authority is unassailable. There is almost no dispute as regards its authority, whereas...
Critical Analysis of the Arguments of the Proponents and Opponents of the Authenticity of “Previous Religious Laws”
Some rulings of the “previous religious laws”, both in the Qur’ān and sunna, are related without mentioning the reason for their proof or disproof for the Muslims. Therefore, the scholars of the religious schools are div...
Semantics of Refinement of the Basis of a Ruling, Comparison with Similar Concepts and its Methodology
Refinement of the basis of a ruling (tanqīḥ al-manāṭ) is one of the rules of principles of jurisprudence, which is applied to the process of inference and for achieving the basis of a ruling (manāṭ). In general, it is a...
The criterion fatwa in legislation within the legal system of Islamic Republic of Iran (Another look at Superior Knowledgeability in the Shia state fiqh system)
Undoubtedly, legislation in any governmental system is based on its intellectual – philosophical foundations and special ideology. Hence, in an Islamic society, religious rules must be criteria of legislation in order to...