ISSN 3062-262X

From the Dispensation of Necessity to the Balance of Preponderant Benefit: A Maqāṣid-Based Grounding for Departure from the Founder’s Stipulation

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Boubker Labiad

Abstract

A founder’s stipulations are drafted at a known time and place and under known economic conditions, to secure an aim more evident to their author than his words: that benefit and reward should continue. Centuries pass, the wording survives, and the condition set to guard the endowment becomes the constraint that strangles it. This article asks within what legal field departure from a valid stipulation is legitimate, and by what instrument a jurist may discipline the claim. It argues that the disagreement between prohibitionists and permitters concerns the breadth of the exception rather than the principle, and that the maxim likening the founder’s stipulation to the Lawgiver’s text is governed rather than governing — Ḥanbalī sources declare such a stipulation void where it collides with the endowment’s purpose. Necessity is shown to be insufficient on three counts: its trigger is rare, it rescues rather than develops, and its ruling is temporary while the effect of departure is permanent. Ibn Taymiyya’s text on exchange is analysed as a three-part structure whose third restriction is routinely dropped. The article closes by proposing a procedural instrument of four criteria, a four-rung verification ladder, and a reasoned decision, offered as testable rather than established.

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