A Critique of the Theory “Reconciliation between Muftaraqāt and Differentiation between Mujtama‘āt”
Journal Title: فقه و اصول - Year 2013, Vol 45, Issue 94
Abstract
In Sunnī and Imāmī jurisprudence, some have said that the legal base in devising rulings is founded on “differentiation between similarities (mutimāthilāt)” and “reconciliation between differences (mutafarriqāt)” and in other words, the legal basis is on the notion of considering the ruling of the similar subjects as different and the ruling of the different subjects as similar. Most of those maintaining the existence of this basis in legal law have stated it as a reason for the invalidity of analogy (qiyās); and some have resorted to it for solving the problems of the rulings that are apparently inconsistent with intellect. The only reason of those maintaining this view is the examples in which the ruling for the similar subjects is apparently considered as different and the ruling of the different subjects as similar. Some jurists have rejected the existence of such basis in legal law and have mentioned some responses to the claims of its proponents, most of which indicate the legal laws as having a cause (mu‘allal) and that it is not possible to consider the ruling of the similar subjects as different. In this writing, we examine the origin of this rule and the arguments of its believers and deniers. What is obtained as a conclusion from the examination of this claim and its responses is that whether the basis is on judicial doctrine, which regards the rulings as centered around the interests (masāliḥ) and abuses (mafāsid), or based on the Ash‘rite doctrine that does not regard the rulings subject to specific reasons, such a proposition is not resolute.
Authors and Affiliations
ḤUsayn ṢāBirī, MūSā Zarqī
Keywords
Related Articles
- EP ID EP184021
- DOI 10.22067/fiqh.v0i0.11844
- Views 122
- Downloads 0
Deliberations on the Condition for the Executor of Testament to be a Muslim
In many jurisprudential discourses, Islam is said to be a condition for the validity or permissibility of action. One of the most important of these instances, which is claimed to be unanimously agreed upon, is the execu...
A Research on the Nature, Impacts, and Functions of Mahāyāt from the Viewpoint of Islamic Sects’ Jurisprudence and the Statutory Law
Division of profits from common properties, known in Islamic jurisprudence as mahāyāt, is a suitable solution for preventing the loss resulting from commonage and can allow for the possibility of equitable vindication of...
Elucidation of Man’s Independence in Divorce Based on Appropriative Quiddity of Marriage Contract
As mutually agreed upon by the two major sects (Shī‘a and Sunnī), divorce is effected only by the husband; and to explain the evidence for this matter, the jurists commonly resort to the Prophet’s tradition, “Divorce is...
Examining the Relation between an Unauthorized (Fuḍūlī) Contract and Transfer of another’s Property
The relation between an authorized contract and transfer of another’s property is one of the subtle and, at the same time, important issues of civil law as well as criminal law, which has doubly increased the legislator’...
Terror from the Jurisprudential Point of View
Terrorism is among the phenomena that has nowadays basically received the attention of political trends, media, and the researchers in the fields of politics, jurisprudence, and law. On the other hand, many of the distor...