Journal Paper

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Journal: فقه مقارن
Year:1397 | Volume:6 | Issue:12
Start Page:111 | End Page:133

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Title

Ownership of Mines in Imami Jurisprudence with an Approach towards the Viewpoints of Jurisprudents in the Four Sunni Schools of Thought

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 Start Page 111 | End Page 133

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Abstract

 There are disagreements on the ownership of Mines among Imami jurisprudents. Some have said that: Mines are absolutely part of Anfal, i. e. the property of Imam or the Islamic governor. Their most important proofs are traditions. Some jurisprudents who, according to Sahib Jawahir, are the majority, categorized Mines under the category of Al-Mubahat Al-‘ Ammah, i. e. permitted for public. These scholars use “ Quranic verses” , “ the Five Traditions” , “ conduct of infallibles” and “ the principle of tamassuk (holding on)” as their references. Some jurists believe in tafsil (detailing) and therefore they believe that Mines can be considered like lands and their primary reason for this is the rule of taba‘ iyyat (following). Some other jurists believe in tafsil between external and internal Mines and their primary reason for this is the rule of ‘ ijma’ (consensus). According to rejection of reasons of other statements, and acceptance of proofs of the first group, and the answers to objections related to their reasons, the true idea is that Mines are absolutely included in Anfal, and therefore they are properties of Imam or the Islamic government. The statements of Sunni jurists are different. Hanafi jurists believe that the rule of mine ownership follows the rule of land ownership. Maliki jurists believe that Mines absolutely belong to Imam, that is, the governor or the vicegerent of Imam. Hanbali jurists believe that the rule of mine ownership about solid Mines follows the rule of land ownership and they consider liquid Mines as Mubahat Al-‘ Ammah and believe that utilization of liquid Mines is permitted for public. Shafi‘ i jurists believe that the ownership of a mine inside private lands is related to the ownership of the land, but if the mine is located in waste-lands, it belongs to the public and no one can own it.

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