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 129
- Downloads 0
A Deliberation on the Deprivation of Couples from Right to Qiṣāṣ
In the Islamic penal system, a right to retaliate called "right to qiṣāṣ" is established for the relatives of someone who has been murdered deliberately. However, the couples have been excluded from among the relatives o...
Change of Fatwā and its Backgrounds in Sunnī Jurisprudence
In the Islamic schools’ opinions, change of fatwa (legal ruling) is among the important issues that has been discussed about both in contemporary and earlier periods. All schools have accepted the permissibility for the...
The authority of the contradictories as to reject a third verdict
One of the issues raised in jurisprudence is that two reasons are terminated if they are contradictory. However, as regards the rejection of a third verdict in concomitance with those two reasons: in case of its authorit...
A Critical Review of "An Exploration into the Evidences on Devotionality of Zakāt and Khums
Having regarded as discredited the jurists’ arguments, one of the researchers has disproved the devotionality of zakāt (legal alms) and khums (one fifth levy) so as to thereby remove one of the most critical barriers for...
The Issue of Khums: Acquired Benefits or Benefits in General
The extent of “benefits”, as the subject of khums, is one of the controversial discourses among the Imāmī jurists, which is of great importance because of its applicability. The “acquired benefits” and “benefits in gener...