Considering Principle in the Islamic Legal System

Authors

Semnan University

Abstract

Abstract
In the Islamic legal system, denying a commandment or
a legal capacity and also some of the legal commandments
conform to principles, and principles are indeed the basis of
many decrees. Although the application of the principles is as
spread as the jurisprudence, and they are used in all of its
fields, there is not a specific clarification and a certain concept
or definition for them. In fact, there are lots of meanings
specified for them, while there is not a criterion to prefer one
over another therefore, there is a pervasive uncertainty in the
concept of principles in every legal school and juridical
religion in Islam. Based on the specifications of the principles,
those which are the life initial regulations are separated from
the ones that are the intendments of the legal evidence and it
is stated that the Islamic jurisprudence is based on the
principles which are the life main regulations, therefore the
main regulation is that there is no legal capacity, and
according to the principle, adhering to legal capacity in
judicial point of view must be denied and also the desirable
freedom which is humans primary right should be provided
moreover there are some tolerances with respect to referral to
principles, so some of the principles are not really life main
and rational regulations. Besides outlining these tolerances,
this paper suggests that the principles which are the
necessities of life natural system are different from the ones
that are theoretical and whimsical.

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