The Principles of the Comparative Jurisprudence (Fiqh Al-Muqaran) Between The Islamic Denominations
Year:2024 | Volume:1 | Issue:1|Papers Count:7

One of the most important issues in Usul Fiqh (principles of jurisprudence), especially with the emergence of new jurisprudential issues, is to eliminate the shortcomings of Usul Fiqh in such a way that, in addition to answering the old issues, it can also solve new jurisprudential issues. This requires a change in the structure of Usul fiqh and expanding the scope of this science. The research method in this article is an analytical and comparative examination of jurisprudence topics, especially novel issues, and an analytical examination of jurisprudence in terms of structure and content according to the purpose of this science. This study aims to complete science in terms of structure, content and knowledge of the necessary rules to solve jurisprudential issues, especially novel issues. The result of the study suggests that Usul Fiqh with its famous structure and topics should be changed as follows: 1. It should be based on being a tool for discovering the Sharia and studying. 2. Enriching many issues that Usul Fiqh includes and clarifying its branches. 3. Referring to what is usually presented as sources in Usul Fiqh from the point of view of the Sunnis, to the discussion in Usul Fiqh, even on the assumption that their source is rejected, one should not neglect all its benefits. 4. Clarifying issues that are frequently used and resolving their ambiguities. 5. As in the first book of Usul Fiqh, (according to the term we use), the duties of those responsible for inference are discussed in detail, in the second book of Usul al-Fiqh, the duties of the exponents of Sharia should be dealt with and assuming that there is no proof of duty for them, it is necessary to examine the methods that the commentators of Sharia have paid attention to in explaining Sharia rulings.

he well-known reason due to obstruction, in the structure of contemporary Imamiya Usul Fiqh, is being criticized and examined in order to validate the mujtahid's absolute suspicion of rulings and ways to reach them. Researching Imamiya and Sunni Usul Fiqh shows that the traces of this reason have a long history in both areas of Usul Fiqh. Due to the possibility of using Usul Fiqh from this source in solving novel jurisprudential issues, the main question of this article is the possibility and how to use this. By dividing novel issues into a category whose main content is based on time and place and is recognized and determined by the legitimate Islamic government as a comprehensive set of government rulings and the category whose novelty is caused by the new occurrence of a jurisprudential issue, we have evaluated the application of the reason of obstruction in each of the two categories. The result, based on the analysis and examination of the reason for the obstruction, has been the unique support of the reason for the obstruction of the first category validity, by using the framework of comparative Imamiya and Sunni Usul Fiqh. However, in the second category, the validity of the reason for obstruction has been rejected. The topic, main content and results of this research are the novelty of this article and have no previous background.

One of the jurisprudential methods to solve the novel problems is to resort to practical principles and especially the principle of Bira’at (The presumption of innocence). Criticisms that are brief and sometimes clear in this way require that all the challenges that are raised or may be raised in this regard should be addressed in detail. In this article, they have been discussed, criticized and examined in three angles. 1. The effectiveness of the principle of bira’at in solving the problems. 2. Obstruction of the validity of the novelty of the issue from the principle of bira’at. 3. Obstructing the validity to the new rational arguments from the principle of bira’at. The novelty of the article is in explaining and examining the challenges of these three angles, especially the challenges of the second angle; The importance of which is to clarify the arguments and the scope of the principle of bira’at in solving the novel problems. The method of this research is analytical, collection of library challenges, and some of them are analytical and abstract. The approach of the research is based on Shia Usul Fiqh, with which the Sunni Usul iqh has been compared.

Most legitimate affairs have a goal, method and tool. Goal is to reach Allah's serving and seek thawab (reward) and satisfaction from Allah Almighty. Method is something that Allah Almighty and His prophet have legislated in terms of ways and actions, and have made it obligatory for people to follow it in order to achieve a greater goal. The tool is that which is used in traveling the path and method, and it consists of changes in every age, and it changes with the change of conditions, objects, time, place, and even human condition and according to what is appropriate, it is left to the servant's choice, except in cases where the provisions of a reason prohibit it. On the other hand, with the increase of tools in this age and their renewal in an amazing way, it has become necessary to know the arguments and criteria indicating the legitimacy of all types of tools. The topic of this article is about the principles that indicate the legitimacy of using various types of tools. They include three principles: the principle of obligatory introduction, the principle of consideration of the result and the principle of completion of intentions. Using these principles helps in finding a suitable solution for novel issues that are not mentioned in the text of the Qur'an, Hadith and other arguments. Issues that require the application of reason, precision and complete attention to reach the most complete answer that is in accordance with the Sharia and its purposes.

The validity of the concept of description is one of the practical issues in Uusl Fiqh, the acceptance of its validity or lack of validity has a great impact on Foru’ and Usul (major and minor rulings). However, a comparative study of this issue has not been done to clarify the similarities and differences of the fariqain (Sunni and Shia Denominations). The present article is organized by descriptive and analytical method and by referring to the written sources of two contemporary fundamental thinkers of Shia (Shahid Sadr) and Sunni (Abdul Karim Namleh), and has examined their viewpoints and analyzed and compared them in order to identify their common points and differences. The findings of the study show a fundamental difference in the nature of the concept between Shias and Sunnis, and this difference is effective in other topics such as the validity of different types of concepts, especially the concept of description. According to the findings of the research, Shia does not consider the concept of description because there is not description of appearance in it, but according to the fact that the Sunnis did not consider the concepts as a subset of any of the three verbal arguments, to prove its validity, they followed the two ways of attributing it to appearances and the way of rational reasoning.

Islamic Sharia is based on all kinds of general arguments and each general argument has its own application and by combining and cooperating with each other, they form a variety of minor rulings without any real difference between them, and if we find a difference in their implementation, the difference is not in their reason and validity, but in the types and time. The way to identify this is to look for the characteristics of these general arguments, and the result of this article suggests that one of the characteristics of the general arguments is to be in line with the minor rulings in all countries and territories, so that our respected Sharia does not stop us from achieving the development expediency in order to provide suitable solutions for all changes and incidents. The rulings based on expediency cannot be established arbitrarily, but are based on very precise and exquisite criteria and standards, which are realized by great scientists with extraordinary mental power, extensive culture and rare genius. These rulings enable them to master the inference of rulings and not make mistakes. Our holy Shariah is based on narrative and rational arguments, and both types of it need the other, and Shariah rulings are completed with them in the most complete and beautiful way.

One of the most important sources in the inference of Shariah rulings is Ijma (consensus), to the extent that it is considered to be more important and more valid than the Qur'an and the Sunnah in denoting the Shariah rulings, while the texts of the Qur'an and the Sunnah alone are sufficient and the most valid sources as arguments in Shariah rulings. This research examines and analyzes the various viewpoints and arguments that have been presented regarding the validity of consensus through a descriptive, analytical and critical method, because in order to prove it in Islamic Sharia and its validity, a definite argument is needed. The result of this research suggests that the arguments for the validity of the consensus, even though the book, the tradition, and the rational method were used, it does not fulfill the purpose, and in a way, the conflict between those who support it in citing these arguments reduces its credit value. As a result, it is not considered among the arguments of inferring rulings based on the "validity of previous existence". The novelty of this article is the critical study of consensus as an independent argument from the point of view of the Sunnis in inferencing rulings, respecting the authentic sources of the Sunnis and proving its invalidity in inferencing jurisprudential rulings.