افتراض المعدوم كالموجود تأصيلا وتفريعا

"Presuming non-existent as existent" An applied study of the maxim in the light of its applications in classical and modern Fiqh

Abstract

This work aims to study the maxim of "presuming non-existent as existent" in light of its applications in both classical and modern Fiqh. It argues that among the prominent features of the sharī‘ah is realism because it deals with every incident and phenomenon and gives a sharī‘ah ruling (ḥukm) about it. Therefore, it gives aḥkām to every real and factual event, likewise, it gives it to a presumptive event, which means giving something a status contrary to its reality, eliminating the hardship and protecting the sharī‘ah-recognized interests. It discusses that the hardship, which occurs in the non-existing of something, may be eliminated by presuming a non-existed thing as existed. It argues that the maxim is recognized by both classical and modern Muslim jurists (fuqahā’), and has numerous applications in various branches of both laws. This study primarily discusses the scope, conditions, and limitations of the maxim and secondly, the practical application of classical and modern Fiqh is discussed, so the scope of this maxim could be understood in a better way.