التشريع بين استحسان النقل و استحسان العقل : بحث في أصول الفقه

الملخص EN

Applying discretion permeates Islamic jurisprudence both in general and specific matters, whether traditional or debatable, in private and public interaction, under normal or emergent conditions.

For justice to be served, the rule is to enforce the uncontested principle, in both traditional and debatable matters, to all persons to which the principle applies.

However, it might be beyond the willingness or capacity of such persons to abide by such implementation, especially in hitherto unfamiliar matters, where such implementation, would lead said persons to voice out utterances or undertake actions deemed unacceptable by the law.

It is at his point that allowance is made for discretion to be applied for the purpose of alleviating the hardships emanating from applying the uncontested principle.

Acting under duress does not exonerate the persons who so act, nor does it nullify the rights of other parties, even though divergent views may be held regarding this law.

Applying discretion is not construed here as and alternative to the law, but rather as complementary to it.