Ahkam al-Ghasb fi al-Fiqh al-Islami
- Author died
- 1426 AH
- Editions
- Mu'assasat al-A'lami lil-Matbu'at
Ahkam al-Ghasb fi al-Fiqh al-Islami (The Rulings of Usurpation in Islamic Jurisprudence) is a comparative legal study by the Iraqi scholar Abd al-Jabbar Sharara (d. 1426 AH / 2005 CE) examining the theory, rulings, and liability mechanisms of unlawful misappropriation (ghasb) across the major Islamic legal schools. Completed on 23 Dhu al-Qi'da 1392 AH (29 December 1972 CE), the work was prepared under the academic guidance of Dr. Salah al-Din al-Nahi .
Scope and Structure
The book is arranged into a preliminary introductory section, four main parts (abwab), and a concluding summary :
- Preliminary Studies (Mabahith Tamhidiyya): Clarifies foundational legal terminology, distinguishing between fungible (mithli) and non-fungible (qimi) goods, legally recognized (mutaqawwam) and non-recognized property, as well as real estate (‘aqar) and movable property (manqul) in linguistic, juristic, and statutory usage . It also examines the relation of usurpation to the philosophy of property ownership and natural law .
- Part One: The Theory of Usurpation (Nazariyyat al-Ghasb): Divided into three chapters covering the linguistic and technical definitions across legal schools, the practical legal consequences of varying definitions, the essential elements and conditions of the usurped item, and the immediate obligation to return the misappropriated property along with the rules governing situations where return is obstructed .
- Part Two: Liabilities and Changes (Ahkam al-Daman): Examines the rules governing the usurper's liability (daman), methods of compensation, accretions and decrements occurring to the misappropriated asset, and accidental contingencies or supervening events affecting it .
- Part Three: Usurper's Dispositions and Legal Disputes: Focuses across two chapters on the usurper's transactions involving the usurped item—whether commercial exchanges, acts of worship, or physical exploitation such as cultivating, planting, or building on usurped land . A third chapter addresses evidentiary disputes between the owner and the usurper regarding destruction, description, quantity, and value .
- Part Four: Theory of Possession (Nazariyyat al-Hiyaza): Analyzes the concept of possession, its elements, legal conditions, and possessory actions, highlighting points of convergence and comparison between modern legal systems and Islamic jurisprudence .
Methodology
Sharara employs a modern comparative juristic methodology, systematically contrasting the doctrines of the Sunnī schools (Hanafi, Maliki, Shafi'i, and Hanbali), the Ja'fari school, the Zaydi school, and the Zahiri school . To ensure academic rigor, he extracts the positions of each school directly from its primary reference literature rather than relying on cross-sectarian secondary accounts . Depending on the subject matter, he alternates between presenting individual school rulings sequentially before weighing evidence (tarjih), and categorizing the overarching doctrinal trends first before verifying their textual attribution to specific authorities .
Answer updated