Arshian Fars Jurisprudential and Legal Journal

Arshian Fars Jurisprudential and Legal Journal

Examining the validity and functions of the concept of opposition in legal systems: from Islamic jurisprudence to foreign law

Document Type : Original Article

Authors
1 University professorDepartment of Jurisprudence and Fundamentals of Islamic Law, Islamic Azad University, Shiraz Branch, Shiraz, Iran
2 PhD student in private law, Al-Mustafa Al-Alamiyah University, Qom, Iran
Abstract
In Islamic jurisprudence (fiqh), the concept of mafhum mukhalafah (implicature of opposition) appears in various forms, such as condition, attribute, designation, number, exclusivity, and limitation. Jurists’ divergent views regarding the authority (ḥujjiyyah) or non-authority of some of these forms have also influenced domestic law. Legal scholars likewise consider some types of implicatures authoritative, while rejecting others. A close examination of the conditions for the authority of concepts such as condition and attribute reveals jurists’ attempts to establish a causal relationship between the ruling and its qualifier—an approach that can be extended to other forms as well. A comparative study of the role of qualification in the authority of mafhum mukhalafah in jurisprudence and law shows that, although foreign legal systems do not adopt the traditional classifications found in fiqh, they place particular emphasis on the “cause-and-effect relationship” in recognizing the authority of such implicatures, grounding their analyses more in rational and logical reasoning than in literal interpretation. Accordingly, it seems that all forms of mafhum mukhalafah should be interpreted under a unified notion—the “concept of qualification”—and that in deriving the causal relationship between the ruling and its qualifier, recourse should be made to rational reasoning, as well as historical and jurisprudential precedents.

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