A Critique of Fayz Kashani's View on the Prohibition of Haqq al-Marrah with Emphasis on Maqasid al-Shari'ah

Articles in Press

Document Type : Original Article

Authors

• Mohammad Sadegh Motaghipisheh ¹
• Hosein Saberi ²
• Hosein Naseri moghadam ²

¹ PhD student, Department of Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology and Islamic Studies, Ferdowsi University of Mashhad, Mashhad, Iran

² Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology and Islamic Studies, Ferdowsi University of Mashhad, Mashhad, Iran

10.22067/jfiqh.2025.91469.1895

Abstract

One of the exceptions to the prohibition of taking possession of another’s property without permission is the right of passage for using fruits (Haq al-Marah), which is usually discussed in the context of transactions. According to this ruling, a passerby under certain conditions may use the fruits of gardens and orchards along their path. The majority of jurists permit the right of Marah; however, Fayz Kashani and some others, due to the immorality of interfering with another’s property and the existence of prohibitive narrations, do not consider the right of Marah permissible. This article, while examining the arguments of both supporters and opponents of Haq al-Marah, with special attention to Fayz Kashani’s evidence and its critique, firstly finds the reliance on prohibitive narrations insufficient because these narrations are solitary (Ahad) and, being in conflict with the widespread (Mutawatir) narrations permitting it, are interpreted as mere dislike (Makruh). Secondly, it regards the use of the argument based on the immorality of interfering with others’ property and the principle of respect as inapplicable in this matter. Furthermore, Haq al-Marah is analyzed in light of the objectives of Sharia (Maqasid al-Sharia), and it is concluded that prohibiting Haq al-Marah disregards these objectives in instituting this right. Therefore, the fatwa permitting it seems stronger.

Keywords

• Haqq al-Marrah (Right of the passerby)
• Impermissibility of using another'
• s property without consent
• Principle of respect for ownership
• Presumption of innocenc
• Maqasid al-Shari'
• ah (Objectives of Islamic law)

Main Subjects

• Civil jurisprudence

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