دراسة لقاعدة عدم النقل أو عدم الورود وتطبيقاتها عند الشافعية

Abstract

This research paper explores the problematic jurisprudential rule of non-transfer or non-typification. The research question is problematized by the existence of obligation-creating rulings whose legitimacy has been stipulated by some jurists without textual referentiality and evidence that can support the transfer thesis and making it binding as an obligation to be fulfilled by its subjects. This has prompted the detractors of this legitimacy to resort to the rule of non-transfer or non-typification in challenging the evidence. The problematic is further nuanced and blurred in the absence of a disambiguating process whereby a line can be drawn within the rule of evidence and referentiality between the concept of non-transfer and the ruling negation thesis, i.e. whether the matter requires evidence or not. The main question this paper addresses revolves around the validity of the use of non-transfer rule in ascertaining or invalidating rulings. Other important questions are also addressed in this paper, mostly those revolving around the (in)validity of the use of evidence in relation to the rule of non-transfer and its contextual applicability when considering the controls of use that enable jurists to implement the rule against its presumptions in an attempt to ward off the shortcomings in the prevention of such use or in its arbitrary use. In doing so, the paper adopts the inductive approach whereby the unanimous affirmations and pronouncements of legal scholars are established with regards to the validity of the use of the rule and its controls in line with the comparative analytical method used in the study of the rule and other related jurisprudential matters and fundamental legal rules. The findings of this paper confirm that the validity of the thesis of the rule of non-transfer as evidence, as used inclusively and in airtight manner, is valid and concurs with evidential methodology espoused by jurists and jurisprudential schools, and that demurral and rejection of the established ruling requires evidence to the contrary. The case is different when applied to those who espouse an ingenuous noncommittal inclination in approaching the ruling, but to those who require evidence for transfer in relation to those subject to obligations, while clinging to the invalidity of the non-transfer ruling.

Keywords: transfer, typification, demurral, ingenuous noncommittal inclination.