Proportion of Ordinance and Subject: Functions and Mechanism of Recognition in the Jurists’ Expression
Journal Title: فقه و اصول - Year 2013, Vol 44, Issue 91
Abstract
One of the requisites for proper understanding of the legal statutes (nuṣūṣ) is that the legislator and the jurist, along with other wise people in various scenes of life, should enjoy collective wisdom and, besides having their own personal viewpoints, they should possess general consciousness and mental background; as this collective consciousness can have a significant role in proper understanding of religious, and specially, legal texts. The religious researchers have since long ago been concerned as not to be negligent of the role of these general and conventional beliefs, conjectures, and impressions. The principle of “proportion of ordinance and subject”, which is rooted in these same general impressions and rationalizations, concerns the suitability and compatibilities between the ordinance and subject in any religious statute with a conventionalist view and at the same time confirmed by religious law (sharī‘a) that by proper understanding it is found out that the ordinance is absolute or restrained; that it has generality in its subject or is designated; or in some instances the ordinance is permeated to other instances by achieving the cause. It is attempted in this article that by a proper definition of the proportion between ordinance and subject and proving it by delving into the viewpoints of the jurists and legal theoreticians to point out the mechanisms for its recognition; and with the scattered evidences and sayings of the jurists on various subjects, its function in statutes to be identified and in the end some applications of this law to be indicated
Authors and Affiliations
AbulfaḍL ‘AlīShāHī Qal‘AjūQī, ArdavāN Arzhang
Keywords
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