Qawaid-e-Fiqahiya Aur Magrabi Qawaid-e-Nisfat (Maxims of Equity) ka Tahqiqi-o-Taqabali Jaizah.

Abstract

The code of law and the judicial system of society have cultural background. Therefore, it should be and rather must be perceptively rooted in and related to the people to be governed under such legal system. Therefore, it is highly important that the code of law may tally with the culture, history and social system. Thus the requirement and necessity of such knowledge is forty fide. Since social phenomena is dynamic therefore, the legal system must undergo required changes and be revised according to the required circumstances. ‘Islamic jurisprudential principles’ (Qawaid-e-Fiqhiya) possess the top priority in Islamic Jurisprudence and ‘Maxims of Equity’ (Qawaid-e-Nisfat) in the Western Law; which help in the comprehension of the former systems. They explain very precisely the juristic debates in the shape of principles and regulatory practices which relates to one or more topics and their most aspects. Moreover it provides the procedural and documentary process of the courts. This is the guidance and role model application of the Maxims explained in the relative case studies, sampling the application of such Maxims and principles. These Maxims provide us the very basis on which both the systems have their logical structure. Practically speaking, these maxims are the helping organ of states and nations because they tend to create and establish the codes of law which is inevitable in the safeguard of social and physical borders any where irrespective of the caste and creed, color and culture. If a person is well versed in these Maxims he feels no difficulty in understanding and solving the Juristic complications. Therefore, these Maxims help us in understanding the basic trend and contemporary philosophy of Islamic Jurisprudence and Western Law. In this thesis we would analyze and highlight the history and development of Islamic jurisprudential principles and Maxims of Equity, while examining the role of these Maxims in the evolution of the systems. We would concentrate and analyze the importance of Maxims in the history of relative juristic systems, their role, utility and further facilitative scope in the modern judicial systems. The said two principles (Islamic jurisprudential principles and Maxims of Equity) would be examined in the comparative method highlighting their similarities and contrasts with special reference to their role in the judicial systems. We have also to measure the depth of the systems absorbing such maxims in the practical exercise of the justice and to sought out the possibility of maximizing the use of these facilitating techniques in the courts from grass root level up to the highest order. It would result in the enhanced facilitation of the maxims in the modern juristic systems and the recommendations for the legal road map for making the justice easy, comprehensible and more spontaneous. Key words: Qawaid-e-Fiqhiya, Islamic Jurisprudence, Maxims of Equity, Court of Chancery, Law