The Jurisprudential Process in Contradiction of Two Implicit Obligations

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Hemmatian Hadi; Bahri Ali

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Journal Paper

Paper Information

Journal: ISLAMIC JURISPRUDENCE RESAERCH Year:2022 | Volume:18 | Issue:2 Page(s): 665-687

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Information Journal Paper

Title

The Jurisprudential Process in Contradiction of Two Implicit Obligations

Author(s)

Hemmatian Hadi | Bahri Ali | Issue Writer Certificate

Keywords

Conflict

Implicit Obligation

Inconsistency

Antinomy

Emergency Substitute

Jurisprudential Process

Abstract

The present study was conducted to explain the jurist’s strategy in the face of the incompatibility of two implicit obligations in practice. The study uses a descriptive-analytical method with legal reasoning (ijtihad) approach. The issue has been considered by jurists since the time of Sheikh Tusi. Four views have been proposed in this regard. The present study rejects the views of inconsistency (tazahom), antinomy (ta'aroz), and the period between two emergency substitutes in the problem and accepts the fourth view. According to this view, the jurisprudential process in the contradiction of two implicit obligations in a religious compound is such that the jurist rules on fulfill the first part or condition of the components and conditions, one of which is possible. Then, if it is not possible to fulfill the second component or condition, it is the turn of the incomplete agent. Finally, if it is not possible to perform the incomplete agent, it is the turn of the substitute. Of course, in conditions where there is no precedence and lag and in case of incompatible components and conditions in the two canonical compounds, if one of them has no advantage or preference over the other, it will be judged to select one of them. Thus, no discrepancy between components and conditions is conceivable in legal compound. And the theory of inconsistency (tazahom), antinomy (ta'aroz), and the period between two emergency substitutes in communication compounds becomes negative.

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