نقدی بر نظریه «جمع بین مفترقات و تفریق مجتمعات در شرع»

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In Sunnī and Imāmī jurisprudence, some have said that the legal base in devising rulings is founded on “differentiation between similarities (mutimāthilāt)” and “reconciliation between differences (mutafarriqāt)” and in other words, the legal basis is on the notion of considering the ruling of the similar subjects as different and the ruling of the different subjects as similar. Most of those maintaining the existence of this basis in legal law have stated it as a reason for the invalidity of analogy (qiyās); and some have resorted to it for solving the problems of the rulings that are apparently inconsistent with intellect. The only reason of those maintaining this view is the examples in which the ruling for the similar subjects is apparently considered as different and the ruling of the different subjects as similar. Some jurists have rejected the existence of such basis in legal law and have mentioned some responses to the claims of its proponents, most of which indicate the legal laws as having a cause (mu‘allal) and that it is not possible to consider the ruling of the similar subjects as different. In this writing, we examine the origin of this rule and the arguments of its believers and deniers. What is obtained as a conclusion from the examination of this claim and its responses is that whether the basis is on judicial doctrine, which regards the rulings as centered around the interests (masāliḥ) and abuses (mafāsid), or based on the Ash‘rite doctrine that does not regard the rulings subject to specific reasons, such a proposition is not resolute.