Critical Review and Analysis of Legal Opinions concerning the Rule “The Usurper is Confronted most Severely”

Document Type : Research Article

Author

• Abulfaḍl ‘Alīshāhī Qal‘ajūqī

10.22067/fiqh.v1i1.3237

Abstract

The Islamic law considers people’s financial affairs as important and has devised special rules for it so that the citizens may live under their protection. Strictness on the usurper of other people’s properties is part of these rules so that no one would dare to encroach upon other people’s properties. This strictness in confronting the usurpers of
rights is implied from the traditions and rulings issued on usurpation. The rule al-ghāṣib yu’khadhu bi ashshaqq al-aḥwāl (the usurper is confronted most severely) is regarded as double accountability and severe punishment for the usurper.
Besides the significant points of this rule, three basic questions are to be answered: First, is this rule brought up as a legal rule or not? Second, what are the viewpoints of the opponents and proponents and what are the evidences for its validity? Third, to what extent can the evidential and applicable domain of this rule be regarded to be?
By proving the rule and its applicability in jurisprudence and law, this research attempts to uncover backings for it such as traditions, religious law taste (madhāq), proportion of ordinance and subject, intellectuals’ stipulation, and enjoyment of two obligatory rulings. On the basis of this rule it also tries to prove for the usurper such domains as immediate return of the property, giving no respite to the usurper even in case of indigence, payment of maintenance expenses even in case of increase in the price of the original usurped property, payment of rigorous and high costs of transportation, and compensation for the profits, whether earned or unearned.

Keywords

• usurpation
• surety
• rule
• proportion
• confronting the usurper
• profits

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