This is an attempt to investigate the linguistic question ofderivation in usul ahfiqh (legal theory). Being treated in various linguistic disciplines, especially grammar, the subject matter is studied in light of these disciplines in order to expound the unique contribution of usulists to it. The present study explores the chronological evolution of the subject and presents "derivation" as one example of the methodology applied by usulists to linguistic issues. / Le present essai se veut le fruit d'une recherche sur la derivation: question linguistique mise en rapport avec le domaine suivant: usul ahfiqh (theorie legale). Le sujet, traite dans differentes disciplines, specialement la grammaire, est etudie a la lumiere de ces disciplines afin d'extraire la contribution particuliere qu" y ont apportee les usulistes. Notre etude retrace done revolution chronologique du sujet et presente la "derivation" comme un exemple de la ethodologie mise en practique par les usulistes en matieres linguistiques. fr

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This work will cover in detail the issues of representation, falsity, factuality, materiality, fraud, inducement and damage. It will also examine other important issues such as exceptions to the rule requiring factuality, exceptions to the rule requiring materiality (plus the general trend of the current law), the rationale behind the factuality rule, the rationale behind the materiality rule, different ways of making a misrepresentation, partial misrepresentation, gross negligence not necessarily amounting to fraud, the theory of continuity of representation, burden of proof, the need for not easing the proof of fraud, the need for taking a harsh position against fraud (after it has been clearly proved), irrelevancy of the defendant's motive to the charge of fraud, irrelevancy of the representee being negligent to the charge of fraud, the law requiring less from the plaintiff in fraud cases, the logic behind the inducement requirement, causation test, the link between materiality and inducement, the representation not being required to be the sole cause of inducement, recoverable damages in a deceit action, the tortious measure of damages, the general trend of the present law as to the recoverable damages in a deceit action, the impact of both practical considerations and logic on the law of misrepresentation, reconciliation between English law and Shi'i law whenever they look different. This research has resulted, <I>inter alia, </I>in the following. First, in <I>English </I>law, the elements of fraudulent misrepresentation are: (1) falsity; (2) communication; (3) dishonest belief; (4) <I>inducement</I>; (5) damage. And, in <I>Shi'i</I> law, they are: (1) falsity; (2) communication; (3) dishonest belief; (4) <I>materiality</I>; (5) damage. Second, though in relation to the elements required by each system, there are some differences between the two, these differences are incapable of causing a considerable difference between the two systems. Third, both systems have taken a harsh position against fraud. Fourth, English law (compared to Shi'i law) has taken a harsher position against the fraudulent misrepresentor, and Shi'i law (compared to English law) has given more security to the transaction. Anyway, as long as the position of both systems are based on taking a harsh position against the fraud, the fact that one system, unlike the other, has taken a harsher position does <I>not cause a considerable </I>difference. Finally, this thesis has shown that the positions taken by Shi'i law find similarities in corresponding positions taken by the modern law (i.e. English law).

This thesis is an attempt to question the established thesis of Joseph Schacht that Islamic law, as we know now, did not exist during the greater part of the first century of the Hijra. His argument rests on the notion that the Qur'an was only utilized as a secondary source in legal matters, and the Prophet's works were out of legal context. Thus, Muslims at that time mostly relied on customary law which was practiced in pre-Islamic Arabia. Consequently, he claims that Islamic law began to develop at the end of the first century of the Hijra, as a result of the measures taken by the Umayyad Caliphs and their Governors. / Contrary to this thesis, some scholars have shown some evidence to argue that Islamic law did exist during the life time of the Prophet. The Qur'an has played a significant role in formulating law as well as solving legal problems in the very beginning of the period. The key figure to apply such law is the Prophet himself and his companions, who, after him, acted as muftis. Moreover, all the Prophet's action including those related to legal matters had been transmitted orally and recorded in a written form. This transmission is owed to the isnad system which was introduced since the life time of the Prophet. After the Prophet's death, his companions pursued these legal activities by issuing legal decision which subsequently developed and became a model of Islamic law. (Abstract shortened by UMI.)

Thesis (doctoral)--University of al-Imām al-Awzāʻī lil-Dirāsāt al-Islāmīyah, Bayrūt, 1991. / Includes bibliographical references (p. 1719-1754) and indexes.

Originally presented as the author's Thesis (ʻĀlamīyah)--al-Jāmiʻah al-Islāmīyah, Medina, 1990. / Includes bibliographical references (v. 3, p. 309-342) and indexes.

Originally presented as the editor's Thesis (doctoral)--al-Jāmiʻah al-Islāmīyah, al-Madīnah, Saudi Arabia, 1985. / Includes bibliographical references (880-900) and indexes.

Thesis (Ph. D.)--Columbia University, 1916. / Vita. Pub. also as Studies in history, economics and public law, ed. by the Faculty of Political Science of Columbia University, vol. LXXX, whole no. 166. Bibliography: p. 157-196.