تحديد جهة العاقلة و أحكامها من منظور فقهي معاصر : دراسة مقارنة

Abstract EN

This research pays an important attention on studying a very significant issue which evokes many real questions that need a sound answer from a legal and jurisprudential point of view.

This issue is “identifying the Alliqah* entity and its rules”.

However, there is no a specific text neither in Holly Quran nor in prophetic Sunnah that certainly proves or denotes to the Alliqah entity and its rules and terms.

Therefore, the whole issue was a kind of interpretative judgment which is independent.

For example, our prophet Moham-med (PBUH) assigned a well–known group of people because they used to help, support and back Ummah at that time.

Moreover, after the expansion of the Islamic state, Omer Ben Al–Kattab – May Allah be blessed with him – assigned the ministerial council because they used to help, support and back Ummah at that time.

He decided it in the presence of some prophet companions and no one denied or disagreed.

So, the concept of Alliqah can be renewed and developed as it is not a merely inflexible social system but it is renewable and flexible according to the time and place.

Furthermore, as it relies upon the aid, backing and solidarity, so, wherever these concepts are found in any party or entity – despite the blood bond – the Alliqah must be found.

Therefore, the Alliqah in the meantime represents in the foundations, parties, unions, associations, firms, insurance companies of the same business and the residences.

Promoting this concept has a base in Islamic jurisprudence as Omer Ben Al–Khattab did.

It settles the aid, backing and solidarity and cultivates the love, tolerance, loyalty and affiliation values between these entities members.

Therefore, these entities must do the best to establish clear mechanisms to take upon themselves the penalties of their members.

Their policy must guarantee the principle of bearing such penalties.

Bearing penalties has various policies relevant to Alliqah itself.

They are discussed as follow: 1.

The affiliation and loyalty to the entity.

2.

The availability of financial capacity of the Alliqah members.

3.

It is obligated upon the Alliqah members both men and women.

There are other policies relevant to the crimes which are as follow: 1.

In case the crime is considered as a mistake or a quasi–deliberate intent, the criminal is helped as he is excused.

2.

In case the criminal is of the first degree, he is not excused.

3.

In case the crime is not confessed by the criminal or is reconciled – as they are uncertain – , the Alliqah can be treated unfairly.

The texts of the republican decree in the article no.

(12, 1994) regarding the crimes and penalties are highly matched to the Alliqah rules and terms in the Islamic jurisprudence.

Bearing penalties is not an exceptional principle from the penalty itself, but it is based on the aid, backing and solidarity, and on the entities’ responsibility towards their members which can stop bloodshed as it is an Islamic rule that no blood is wasted.