Document Type : Original Article
Authors
1 Professor of Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran
2 Assistant Professor, Department of Islamic Law, Faculty of Humanities, Shahed University, Tehran ,Iran
3 L,L,M Student in Fiqh (Islamic Law) and Private Law, Shahid Motahari University, Tehran, Iran.
Abstract
In the field of Ta’arozat (conflicts) in Usul Al Fiqh, an especial subject is separated with the title of “Ijtima Amr and Nahi” and in terms of its especial characteristics, it tries to answer the question that basically, gathering the ordinance and prohibitions in a single matter is possible or not? This issue has become a battle of opinions as a result of the difference in theological, logical and Islamic jurisprudential foundations over many centuries, so that the commentators who believed into “possibility” claimed the non-transmission of the rules (Ahkam) from title to titled and the plurality of title due to the plurality of titled. On the other hand, the commentators who believed in “impossibility” have raised objections to the aforementioned claims, and the present article is a new argument and response to them. The topic of “Ijtima Amr and Nahi”, although has been discussed in Usul Al Fiqh and related knowledge, but by the abolition of specificity and analogize, we can open the feasibility of planning and implementing this topic and its branches in the legal systems and legal studies. Of course, the necessity of such a compare and feasibility is to look and think differently and to pay attention to the new coordinates in which the literature of ordinance and prohibition has faded and talk about the conflict of legal obligations and prohibitions. The manifestation of this conflict is visible in the field of contract law. Where Pacta Sunt Servanda is the embodiment of obligation and ordinance, and various civil and criminal forbidden matters are the embodiment of prohibition, and contract is the single subject that the conflict is about. Of course, this type of conflict is never situated in the field of contracts and is resolved in various ways, including adherence to "If the condition is lost, the result is also lost” rule, and unlike Usul Al Fiqh the impossibility of such gathering, would be proved.
Keywords
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