درء المفاسد أولى من جلب المصالح :دراسة اصولية وتطبيقات معاصرة

Abstract

This research deals with the maxim, ‘warding off evils is preferred over securing benefits’ from the stand point of the principles of Islamic jurisprudence. The research sheds light on the most important part of the maxim on the concept of ‘evil’ based on the perspective of the scholars of Islamic jurisprudence, before embarking on its Shari'ah based fundamental studies. It presents the various definitions on the subject and gives preference to the most suitable among them. It equally explains the categories of ‘evil’ from the view point of the scholars. By scrutinizing the maxim ‘warding off evils is preferred over securing benefits’, The researcher is able to clarify the meanings, the submerging of the concepts and the invoking of textual and rational evidences that establish it. More so, the researcher did not overlook or neglect the methodologies of jurists in their invocation of evidences within their various schools of law. This goes with the explanation of the wisdom of the Shari'ah, the objective behind the prevention of ‘evil’ over the attraction of ‘benefit/interest’. The research also explains the determinants of maxim complaining and determines the seven criteria through which the knowledge about the given of priority to evil over benefit/ interest when both (evil/benefit) conflict with each other. Likewise, the research sheds light on the subject to show the connections and create links between the maxim of ‘prevention of evils’ and some other sources in the Shari'ah, which are also maxims/rules of jurisprudence and the principles of jurisprudence, through explaining the similarities and differences between both. The research concludes with the studies of the application of the maxim, ‘the prevention of the highest/priority evils is preferred to the attracting of benefits/interests’ which revolves around four models in the area of worship, transactions, family, and crimes. The applications are: investment of Zakat funds, purchase and sale of mixed stocks, Misyar marriage, and application of discretionary monetary punishment. The research adopted the inductive approach to collect the various opinions of scholars and evidences related to the topic as well as the analytical descriptive method for the explanation of the opinions and their different views. This also includes the explanation of their methodologies while citing evidences, and criticizing them, in addition to the implementation of the principles and the criteria of weighing between the evils and interests/benefits, as well as the manner of its application and its arrangement on the basis of such applications and relying upon them while weighing between evidences.