Philosophical Foundations of Waiver of Right in Islamic Jurisprudence and Western Law

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TAQIZADEH EBRAHIM

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Journal: Islamic jurisprudence Resaerch Year:2018 | Volume:14 | Issue:3 Page(s): 677-706

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Title

Philosophical Foundations of Waiver of Right in Islamic Jurisprudence and Western Law

Author(s)

TAQIZADEH EBRAHIM | Issue Writer Certificate

Keywords

WaiverQ2

Right and JudgmentQ1

ExpediencyQ1

Theory of SelectionQ1

Theory of UtilityQ1

Abstract

The matter of Waiver of right is raised in most of the legal disciplines. In order to assess and judge the accuracy or nullity of this legal act, different measures have been proposed like autonomy, efficiency (usefulness) and Expediency. The root of these criteria must be explored in the discourse of "the philosophy of right". Therefore, it is necessary to deal with the philosophical foundations of Waiver. This paper, reviewing the ideas proposed regarding the right in Islamic jurisprudence from one hand and the theories presented by philosophers and western jurisprudents on the other hand, will identify and compare the criteria for the assessment of Waiver of right. The Islamic jurisprudence reviews the matter within the issues pertaining to the Right and Judgment. The right in Islamic thought is analyzed and judged in the form of Expediency. The theorists in the west have proposed different theories of right among which two theories of will and profit are more popular. According to the theory of will, the sovereignty of beneficiary over the subject of the right is the most fundamental attribute of a right. The theory of profit, by reducing the right to utility, makes the utility as the main reason for the right. From the viewpoint of Utilitarianists, the right is a means of public good and if the welfare of the community as a whole is required, then it will be permissible to sacrifice personal rights. Thus, in the Waiver of right, the will of beneficiary is secondary. The study showed that the opinions of some jurisprudents are consistent with the theory of will but the prevailing attitude in Islamic jurisprudence depends on the Expediency that have some similarities with the theory of profit. The main difference is that the Expediency in Islamic thinking has an inter-religion aspect but in the Western thought it has a humanitarian aspect.

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APA: Copy

TAQIZADEH, EBRAHIM. (2018). Philosophical Foundations of Waiver of Right in Islamic Jurisprudence and Western Law. ISLAMIC JURISPRUDENCE RESEARCH, 14(3 ), 677-706. SID. https://sid.ir/paper/220963/en

Vancouver: Copy

TAQIZADEH EBRAHIM. Philosophical Foundations of Waiver of Right in Islamic Jurisprudence and Western Law. ISLAMIC JURISPRUDENCE RESEARCH[Internet]. 2018;14(3 ):677-706. Available from: https://sid.ir/paper/220963/en

IEEE: Copy

EBRAHIM TAQIZADEH, “Philosophical Foundations of Waiver of Right in Islamic Jurisprudence and Western Law,” ISLAMIC JURISPRUDENCE RESEARCH, vol. 14, no. 3 , pp. 677–706, 2018, [Online]. Available: https://sid.ir/paper/220963/en

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