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نظرية تفريق الاحكام في الفقه الاسلامي بين التأصيل و التطبيق

المصدر: مجلة دار الإفتاء المصرية
الناشر: دار الافتاء المصرية
المؤلف الرئيسي: البرعي، أحمد سعد علي (مؤلف)
المجلد/العدد: ع 6
محكمة: نعم
الدولة: مصر
التاريخ الميلادي: 2010
التاريخ الهجري: 1431
الشهر: أكتوبر
الصفحات: 44 - 77
رقم MD: 167115
نوع المحتوى: بحوث ومقالات
قواعد المعلومات: IslamicInfo
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المستخلص: Over the centuries, Allah the Almighty has bestowed the study of Islamic law with certain men who have, throughout the passage of time, carried its standard, set down its foundations and principles and constructed a beacon of light. Their books contain important and beneficial principles, general theories, from which they derived substantive rulings. These principles and theories had the greatest impact on the development of Islamic jurisprudence and on the later formulation of a juristic mindset. One example of such a theory is «tafriq al- ahkam» or «tab>id al-ahkam» as some jurists prefer to call it. Scholars from the different legal schools have, over the years, drawn upon this theory to find answers to many unprecedented [legal] questions which arose in each era. It is a theory that jurists have applied to such an extent that it permeated the entire corpus of jurisprudence, resulting in a variety of books and a great diversity of questions; jurists have likewise based many rulings on it. More importantly, it is a theory unique to Islamic jurisprudence, differentiating it from codified laws and regulations. Further, it reveals the mindset of the Muslim jurists-may Allah have mercy on them. The Theory: A jurist or judge may encounter a legal question for which he has conflicting evidences, each producing a ruling conflicting with the ruling resultant from one of the other evidences. In such an instance, the mujtahid or judge would practice caution and attempt to reconcile between the two evidences, recommending a course action which accounts for both evidences at once without giving precedence to one over the other. This is what jurists have referred to as «tab>id al-ahkam». Furthermore, a jurist may adopt this method to mitigate harm which may befall an inquirer in accordance with the following scenario: on a particular point of law, a given evidence entails a certain ruling, which carries with it a host of attendant issues. It may be that some of those attendant issues cause the inquirer undue harm. As such, those problematic issues are precluded from the ruling, and so the ruling is established but not all of its attending matters. This too is considered «tab>id al-ahkam». in summary, this paper attempts to depict the various aspects of this theory and the motivations behind its implementation so that, when dealing with novel issues, we may follow the footsteps of those jurists who have expounded it.