The Realm of Fiqh and Quiddity of Permissibility; A Review of the Principle “ عدم خلوّ الواقعة عن الحکم There is no Event without Legal Ruling”

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Jahangiri kolookhi Mohsen; Bannaei Kheyrabadi Muhammad Ali

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Journal: CIVIL JURISPRUDENCE DOCTRINES Year:2022 | Volume:14 | Issue:25 Page(s): 53-76

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Title

The Realm of Fiqh and Quiddity of Permissibility; A Review of the Principle “ عدم خلوّ الواقعة عن الحکم There is no Event without Legal Ruling”

Author(s)

Jahangiri kolookhi Mohsen | Bannaei Kheyrabadi Muhammad Ali

Keywords

The realm of fiqh

Fiqh and law

Permissibility

Mantaqat al-firagh (the lacuna)

Abstract

The problem of the realm of fiqh relates with an extensive network of subjects which each has been propounded in its specific area. One of the effective subjects to solve this problem is to extract the quiddity of legal rules to get its range. Explaining the quiddity of permissibility (Arabic: اباحه ibahah) and mentioning the have accepted that the sexual intercourse is a precondition and restrictive factor for the establishment of dowry and although there have been aspects for establishing the total of dowry in the condition of not engaging in sexual intercourse but these aspects are disputable and in contrast the aspects such as the stipulated benefit in the case of the benefit of condition, the validity of the title of the wife who are not engaged in sexual intercourse in the situation of divorce, the possibility of tanqih al-manat (extraction of the underlying reason) being of the cases of establishing half of dowry in the situation of the annulment of marriage before sexual intercourse indicate the division of the value of dowry in half. Therefore, the opinion of dividing the dowry in half has been justified and substantiated. will for waqf (Arabic: الوقف endowment of property) as one of the “ wills” and legal acts which has been suspended to the death of a person has been paid attention to by the jurists and law scholars. But the nature of such will has been constantly disputed and they do not believe that there is no reconciliation between it and the wills of promissory (ahdi) and transfer of ownership (tamliki) but they think that because in the case of “ a will” for waqf, transferring of ownership in relation to the testator’ s property is occurred this category of “ will” is placed under the third category i. e. a will for disposing off the property and besides “ wills” such as a will for manumission (freeing slaves or a release from slavery) and ibra' (Arabic: ابراء waiver on the right of claim). But observing the present regulations in the two legal systems of Iran and Egypt, a will for waqf is counted as one of the instances of tamiliki wills. According to this type of will waqf for a property is enforceable just in the case of creation (making) of a will and without the need for an independent creation by the legatee (Arabic: موصی له al-mū ṣ ā lahu) or legatees. In respect of being the legal entity in waqf assets (Arabic: موقوفة) in Iranian and Egyptian legal systems resulting independent assets, competence and the capacity of rights and duties for legal persons, as just the death of the legatee the asset itself extracts from his possessing-owning property-and transfer to the possessing of the permissibility is the absence of legal ruling or the ruling of permissibility has a vital role in the problem of the fiqh realm. Especially, when the relationship between permissibility (Arabic: اباحه ibahah) with the principle “ عدم خلوّ” is described well; a continual principle-according to claim a consensus on it-in Shia fiqh and the principles of fiqh which its contents are: no events are without legal ruling “ عدم خلوّ الواقعة عن الحکم” . Besides the naqlior revealed arguments “ everything-halal or haram or what people need-but it is in the holy Quran or Islamic tradition” martyr Sadr for proving this has utilized the reasoning argument i. e. God’ s grace. Although the principle of grace (lutf) is considered valid and has a great effect in the problems such as the comprehensiveness of sharia, the relationship between fiqh and law but it has not appropriately clarified as the position of the jurist such as Imam Khomeini with adducing to some of his sayings in the absence of his important analysis of permissibility and the absence of ruling has been gathered. The present note with referring to the authentic Shia usul and fiqh texts and with jurisprudential method the opponents’ opinions of this principle such as Muhaqiq Naraqi, the late grand Ayatollah Khoei and Imam Khomeini have been surveyed and at the end with close attention to the space of issuance of narrations and debate on reasoning argument of God’ s grace it has valued (believed) the authenticity of some opponents’ reasons.

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APA: Copy

Jahangiri kolookhi, Mohsen, & Bannaei Kheyrabadi, Muhammad Ali. (2022). The Realm of Fiqh and Quiddity of Permissibility; A Review of the Principle “ عدم خلوّ الواقعة عن الحکم There is no Event without Legal Ruling”. CIVIL JURISPRUDENCE DOCTRINES, 14(25 ), 53-76. SID. https://sid.ir/paper/982607/en

Vancouver: Copy

Jahangiri kolookhi Mohsen, Bannaei Kheyrabadi Muhammad Ali. The Realm of Fiqh and Quiddity of Permissibility; A Review of the Principle “ عدم خلوّ الواقعة عن الحکم There is no Event without Legal Ruling”. CIVIL JURISPRUDENCE DOCTRINES[Internet]. 2022;14(25 ):53-76. Available from: https://sid.ir/paper/982607/en

IEEE: Copy

Mohsen Jahangiri kolookhi, and Muhammad Ali Bannaei Kheyrabadi, “The Realm of Fiqh and Quiddity of Permissibility; A Review of the Principle “ عدم خلوّ الواقعة عن الحکم There is no Event without Legal Ruling”,” CIVIL JURISPRUDENCE DOCTRINES, vol. 14, no. 25 , pp. 53–76, 2022, [Online]. Available: https://sid.ir/paper/982607/en

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