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:: Volume 5, Issue 17 (10-2017) ::
3 2017, 5(17): 93-129 العودة إلى قائمة الأعداد السابقة
Reviewing the Quality and the Framework of the Observance of the Wisdom and Logic of the Judgments in the Laws Based on Those Judgments
Abstract:   (1927 Views)
The present article is based on the fact that the context of legislature is different from that of the judgment of the religious order. Upon this fact, a question arises as what sort of  relationship exists among the wisdom of the judgments, the aims and purposes of Sharia ( maqased al-Shari’a) and the objectives of religion with the requirements governing the rule of law in the field of Sharia or Islamic Law. According to the author, it is necessary in the legislative processes, prior to any legislative activity, the legislator be fully confident about the purposes as well as general objectives of the religion. In other words, if these goals and intentions conflict with the necessity of observing some of the other laws, one should act according to tazahom[1] in the law. These criterions are set in such a way that there is no clear and indisputable criterion between these two issues; nonetheless, it can be briefly mentioned that the consideration of the goals and the general objectives of the religion enjoys priority over the necessity of observing Mubāḥ [2], that is, changing mubah is easier than changing Ḥarām [3],or wajib[4]. This type of prioritization can be considered for many social realities. Indubitably, neglecting social realities in the context of legislation makes the goals of religion and the purposes of the law and also the wisdom of judgments get lost
 
[1]. Literally: the rules of conflicts; meaning: the maxim of mutual competition, that is, if two duties conflict/compete, then, it is a must to follow the one deemed more important than the other or the one more pressing than the other.  
[2]. a jurisprudential term denoting an action that has no specific ruling, so doing or avoiding it is equal and it has no Divine Reward and Punishment. Therefore, any action that is not wajib (compulsory), haram (prohibited), mustahab (recommended) or makruh (disliked) is mubah (permissible).
[3]. a jurisprudential term, referring to forbidden actions
[4]. an Islamic jurisprudential term referring to an act that must be performed and if abandoned, it will lead to Divine wrath and punishment
Keywords: tazahom, the aims and purposes of Sharia, wisdom and logic of the judgments, social reality
Full-Text [PDF 796 kb]   (مرة تنزيل)    
Type of Study: Research | موضوع البحث: Political Fiqh & Public Law
Received: 2020/08/23 | Accepted: 2020/08/23 | Published: 2020/08/23
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Reviewing the Quality and the Framework of the Observance of the Wisdom and Logic of the Judgments in the Laws Based on Those Judgments. 3. 2017; 5 (17) :93-129
URL: http://2.188.15.35/article-1-213-en.html


Volume 5, Issue 17 (10-2017) العودة إلى قائمة الأعداد السابقة
فصلنامه دین و قانون Quarterly Journal Religion and Law
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