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التأصيل الشرعي لفكرة الحق التبادلي في الفقه الاسلامي : دراسة فقهية مقارنة

المصدر: مجلة دار الإفتاء المصرية
الناشر: دار الافتاء المصرية
المؤلف الرئيسي: عكاز، محمد علي علي (مؤلف)
المجلد/العدد: ع 7
محكمة: نعم
الدولة: مصر
التاريخ الميلادي: 2011
التاريخ الهجري: 1432
الشهر: يناير
الصفحات: 12 - 57
رقم MD: 167143
نوع المحتوى: بحوث ومقالات
قواعد المعلومات: IslamicInfo
مواضيع:
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المستخلص: The concept of reciprocity is well known as a system based on cooperation between groups or individuals who agree to compensate sudden damages that befall one of them in cases of danger; the motivation being securing a certain interest from the other party. The study aims to delve into the origins of this concept in the sources of Islamic law. After researching the topic, evidence was found in the primary texts, the Qur'an and sunnah. The most important evidence is the Prophet’s commendation of the Ash’ari tribe, who when their women became widowed or food became scarce at times of war, would collect all the food in their possessions and share it equally among them. The Prophet said, “They are of me and I am of them.” By closely examining Islamic jurisprudence, matters comparable to the general concept of reciprocity were found to have been discussed by scholars from the various schools of jurisprudence. The most important of these is ‘aqd wala 'al-muwalah’ or the treaty of allegiance in the Hanafi School. The elements common to the two concepts are the concepts of assistance and cooperation when one of the parties suffers difficulties or calamities. Moreover, the concept of reciprocity can be analogized against the concept of ‘diyya’ or blood-money and the principle of ‘aqilah’ or shared responsibility (the family members who share the blood-money liability) due to the similarity between the two concepts in terms of the cause on which the ruling will be based. Cooperation denotes shared financial responsibility, leading jurists to acknowledge the permissibility of the system of retirement and pensions due to the absence of a defect that might render it prohibited. In the same vein, there is no defect in the concept of reciprocity rendering it permissible. Likewise, there is not any defect in hiring guards that necessitates their prohibition. Evidence for the permissibility of the concept of reciprocity is reflected in the practice of the community of cloth merchants. They would each place a sum of money with a person they all trusted, creating a fund to fall on should any sudden financial liabilities befall them. And a further example is the legal principle mentioned by Al-Qarafi concerning the responsibility of compensating goods that have been thrown overboard. In conclusion, the concept is permissible; it is consistent with the principles of Islamic jurisprudence if it conforms to the criteria and recommendations mentioned at the end of the study.

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