LOGIC OF MODERN LAW AND USUL AL-FIQH: THEIR ORIGIN, VARIOUS APPLICATIONS AND IN THE IRANIAN LEGAL SYSTEM

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SIMAEE SARRAF HOSSEIN

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Journal: Legal Research Year:2011 | Volume:- | Issue:55 Page(s): 139-164

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Title

LOGIC OF MODERN LAW AND USUL AL-FIQH: THEIR ORIGIN, VARIOUS APPLICATIONS AND IN THE IRANIAN LEGAL SYSTEM

Author(s)

SIMAEE SARRAF HOSSEIN | Issue Writer Certificate

Keywords

LEGAL REASONINGQ2

LEGAL LOGICQ2

ANALOGICAL METHODQ2

HERMENEUTICSQ2

USUL AL-FIQHQ2

SOURCES OF LAWQ2

Abstract

According to Article 4 of the Constitution of the Islamic Republic of Iran all legislation must be compatible with the norms of Sharia'h, Such a constitutional demand, beside the shortage of domestic scholarly interpretive works, can lead to the fallacy of equalizing Shariah and the law. One consequence of such a fallacy would be to eliminate the ANALOGICAL METHOD from LEGAL REASONING and replace it with reference to Islamic sources instead (Article 167 of the Constitution). It is, however, feasible to interpret the law by applying an ANALOGICAL METHOD and, hence, preserve the rule of law.The main finding of this article is to show that, even if the ANALOGICAL METHOD is not acceptable in fiqh, that should not be the case in the law. Accordingly, Article 167 of the Constitution should only be applied where all other interpretive techniques including the ANALOGICAL METHOD have failed to address fully a legal case. Such an approach would enhance the rule of law in the system and reduce personal subjective interpretation by judges based on their fiqhi tastes. The hermeneutical result of this research is to affirm the independence of LEGAL REASONING from that of fiqhi interperation.

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APA: Copy

SIMAEE SARRAF, HOSSEIN. (2011). LOGIC OF MODERN LAW AND USUL AL-FIQH: THEIR ORIGIN, VARIOUS APPLICATIONS AND IN THE IRANIAN LEGAL SYSTEM. REVUE DE RECHERCHE JURIDIQUE, -(55), 139-164. SID. https://sid.ir/paper/91906/en

Vancouver: Copy

SIMAEE SARRAF HOSSEIN. LOGIC OF MODERN LAW AND USUL AL-FIQH: THEIR ORIGIN, VARIOUS APPLICATIONS AND IN THE IRANIAN LEGAL SYSTEM. REVUE DE RECHERCHE JURIDIQUE[Internet]. 2011;-(55):139-164. Available from: https://sid.ir/paper/91906/en

IEEE: Copy

HOSSEIN SIMAEE SARRAF, “LOGIC OF MODERN LAW AND USUL AL-FIQH: THEIR ORIGIN, VARIOUS APPLICATIONS AND IN THE IRANIAN LEGAL SYSTEM,” REVUE DE RECHERCHE JURIDIQUE, vol. -, no. 55, pp. 139–164, 2011, [Online]. Available: https://sid.ir/paper/91906/en

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