Foundations of the Validity of “Balancing Two Rights” and Its Applications in Imāmiyya Jurisprudence
Year: 2024
Type: article
Abstract: The rule of “prohibition of detriment or no harm and no harassment” (Arabic: لا ضَرَر و لا ضِرار, Romanized: Lā Ḍarar wa Lā Ḍirār) is one of the widely used topics under the discussion of “balancing two rights” or “reconciling two rights.” In fact, balancing two rights is a civil jurisprudential rule invoked to prevent harm, although jurists have not presented it as an independent jurisprudential rule. The reconciliation of two rights is proposed as a solution to prevent harm, which is the reason for the supremacy of the rule “no harm” over other jurisprudential rules, as reason also dictates this. Additionally, it finds application in various chapters of jurisprudence and law, such as in contracts of sale (Arabic: اَلْبَیْع, Romanized: al-bayʿ), insolvency, Mahr (Arabic: مهر) or Ṣidāq (Arabic: صِداق), liability (Arabic: ضَمان, Romanized: ḍamān), pre-emption (Arabic: اَلْشُّفْعَة, Romanized: al-shufʿah), and so forth. In this article, the researchers aim to examine the most important reasons for reconciling two rights using a descriptive-analytical method, accompanied by references to the sources of legal scholars and the opinions of Imāmiyya jurists. Based on these reasons, the discussion addresses various aspects of the rule of reconciling two rights, along with its functions and examples in civil and criminal matters. This is particularly relevant in situations where a conflict arises between the rights of two individuals, and there is no possibility of prioritizing one over the other; in such cases, the rights of both parties are reconciled due to the principle of non-harm, as harm is negated in Islam.
Authors: Abolfazl Alishahi Ghalehjughi, fariba taee, Shima Naseri, Abu- alhasan Bakhtiari
Language: English
Subfield: Education
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W6946540785
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