قاعدة العبرة بالغالب

Abstract

Many rules of the Shariah revolve around the principle of the preponderant which is defined as consideration shall be given to the commonly preponderant, not to the rare. Likewise, Most of the content of social sciences, including economics, is based on presumptive evidence that is preponderant. Therefore, this study stands to explore the application of the Islamic principle of the preponderant in contemporary financial transactions. This study is divided into three chapters, an introduction and a conclusion. In the first chapter, special attention is given to the definition of the principle of the preponderant in Islamic jurisprudence. Classification of the principle, its maxims, and conditions are discussed as they give a more precise idea of the limitation of the concept. Besides, arguments for and against the application of the principle, and its relation with other legal maxims such as the apparent, the principle, the general, and the favoring, are also covered. Since the Islamic finance is based, in its objectives and operations, on the strict application of the Shariah, the second chapter is concerned with the relation between the principle of the preponderant and other Islamic legal concepts. While the preponderant principle is the focus of the text, the chapter also sheds light on the Islamic legal maxims, both normative and partial, that reflect the spirit of Islamic law and can be linked to the overall goals or maqasid. Of equal importance, the chapter highlights the important legal maxims that are regarded as branches of this main principle, while other maxims related to the application this principle are discussed. These include the dependency rule and legislative estimations. Further, the chapter limits the conditions to which the principle of the preponderant is applied to three main ones: general, specific, and partial. The third chapter examines the practical application of the preponderant principle in Islamic law with the practice of contemporary financial issues. Arguments over the appropriate application of this maxim to specific cases involve a variety of issues, including effects of inflation on debtors, multilevel marketing, and underwriting in contributed mixed companies. The chapter provides definite answers concerning the meaning of the issues, analyzes the religious point of view by the contemporary scholars regarding each matter, and gives explanations for the use of the preponderant principle in such financial issues. The conclusion summarizes the discussion, presents the findings of this study, and also proposes some recommendations.