Fiqh va Usul
Year:2020 | Volume:52 | Issue:1 (120)|Papers Count:8

In revelation verses, in order to indicate the Muslims' holy text, the two names of the Book and Quran are used more than any other name; despite the extensional overlap of the two names, they have different meanings and have not been used interchangeably. Furthermore, throughout the history of the Usul science, in order to indicate the first religious proof i. e. the Muslims' heavenly text, these two names have been the most widely used names. Answering the question of whether these two names have been used consciously, purposefully and according to their conceptual differences or have been applied arbitrarily and tolerantly, in addition to the issue of the relation between the meanings of these two names in the Usul science and their meanings in the Holy Quran have been an incentive to the formation of the present research. Accordingly, studying the relation of the meanings of the names of the Book and Quran in the Usul science with their meanings in the Holy Quran, in addition to realizing why and how the Usulis have defined them, have constituted the mission of the present research. The results clearly show that the Usul science is a leading and effective science in defining the Muslims' holy text, several definitions have been given therein and the names of the Book and Quran have been used in a purposeful and meaningful way in connection with their meanings in the Holy Quran.

In the law of international conventions, under article 51 of the Charter of the United Nations, individual armed attack against countries is permitted only in the form of self-defense. One of the most important grounds for disagreement over self-defense is whether it includes preventive defense in imminent attacks referred to as “ anticipatory defense” . Many jurists accept it on the basis of necessity; however, most of them, attempt to deny this inclusion, through realistic interpretation, in order to reduce the dangerous consequences of its abuse. The present paper, through descriptive-analytical method using library sources, seeks to introduce the Islamic strategy with regard to this issue. The findings suggest that authoritative Islamic sources confirm anticipatory defense against imminent attacks; nevertheless, since war methods are included in the Mentaqa Al-Feraq, the Islamic ruler may decide about it on the basis of appropriate interests. The Islamic state ruler has the authority to withdraw from anticipatory defense in case of global consensus on restrict interpretation of defense or formation of international custom in this regard. Such tactic is an obstacle against the supporters of the invasion and also has been approved in the Infallibles' Sunna.

The testimony of witnesses in courts is among the evidence in penal and civil law. In order to rely on the results of testimony, strict conditions have been prescribed for witness which, according to the famous opinion of Shiite jurists are maturity, wisdom, Islam and legitimacy of birth, justice and the absence of accusation. Although the state of not being accused in witness has been considered as a feature whose absence confronts the witness with the rejection of his testimony, careful examination of the Islamic jurists' words and expressions in this regard shows that the accusation of witness and the probability of perjury in favor of one of the parties are not considered as an obstacle to testimony; since, if his justice is accepted, this probability is weak or unimaginable; instead, the obstacle is that the witness is a beneficiary. Therefore, the opinion of those jurists who have used the condition that the wintess is not a beneficiary instead of the absence of accusation has been preferred.

Context, which is the result of companionship and homogeneity of words and sentences, due to its capability to illustrate layers of sense in a vast space, unlike the meaning of word and sentence, becomes important. Such capability is caused by some evidences and circumstances surrounding the words and certain metaphorical communications, in addition to the characteristic of singulars and the arrangement thereof. A collection of these features and a combination of evidences leads to an appearance which is the origin of context and, in turn, it becomes a cause for realization of different types of contextual appearance including lexical and non-lexical, in addition to their subtypes. Such types are preceded by determination of the basis concerning limitation of the nature of context from the wideness and narrowness perspectives. Since the selected opinion in this regard is the inclusiveness of textual evidences in addition to verbal evidences in the field of context, the authors will consider different types of contextual appearance. The result of this typology may, in practice, help in the course of inference and prepare the ground for widening the meaning of precepts.

The present paper seeks to determine the scope of Sunnis and explain its position and role in the accurate understanding of the preference of opposing Sunnis and has pursued this important work through clarifying the intensional, conceptual and extentional scopes of Sunnis and limiting the thematic domain of agreement and opposition. The discussion is concentrated on the point that the indiscipline found in Imamia sources in opposing Sunnis as a preferrer in the area of contradiction of traditions without taking into account the historical conditions surrounding the age of the issuance of traditions, has led to a sort of confusion and mistake and even extreme and untrue application of this preference in the field of Islamic jurisprudence. Due to the existence of this problem, the authors have tried to provide useful conclusions including the established amount of applying this preferrer and probable solutions to apply it on a regulated basis through criticizing and analyzing the current opinions concerning the denotation of Sunnis.

The rule of certainty has not been accepted by famous Islamic jurists and Usulis and they believe that there is no proof to consider it as a rule. Sheikh Ansari has even refused the validity of inferring this rule from the narrations of the discharge and passage field; Indeed, it is a misconception to believe that the content of the rule of certainty is the same as the rule of discharge and passage and conclude that it is possible to prove the former; since, in the rule of certainty, the precedence of certainty is the main element; while with regard to the rule of discharge and passage, the certainty element is not assumed and from this very aspect, a question arises whether it is possible to infer the cases of the individual's certainty from the absoluteness of some narrations of this area as well. In other words, is it possible to infer the precedence of doubt in comparison to the neglect and certainty case? If possible, although it may be said that the narrations may not independently prove the rule of certainty; given their absoluteness, they do not contradict its proof either. In this descriptive-analytical research, while examining the opinions on the topic and presenting three understandings in order to explain the meaning of the rule of certainty, using some narrations of the rule of discharge and passage area, the authority of the rule of certainty has been proven in the context of its minimum interpretation.

In this research, through a descriptive-analytical method, with the purpose of analyzing a number of jurisprudential issues concerning the excused pilgrims of Hajj including the women’ s emergency staying, scarification, performing the acts after Mina, a part of women’ s rituals during the menstrual cycle and the issues related to the sick and elderly pilgrims, the authors have scrutinized the Islamic jurists' opinions and proofs from two aspects: the difference between gratuitous and paid representation; and the ancillary and principal excuses. According to Imam Khomeini and some other jurists' fatwas, in case the pilgrim is not excused from the beginning and an excuse happens to him/her while performing the act, appointing an agent for him/her is not valid, either gratuitously or for reward. Likewise, appointing agents for the excused pilgrims has been studied from two perspectives: first, from the viewpoint of the permissibility of the act and the validity of the Hajj performed by the agent and second, from the viewpoint of the agent’ s entitlement to remuneration and commission. The majority of Islamic jurists believe that if an individual is bound to perform Hajj as a strict duty, he/she may not become another’ s agent, otherwise, his/her Hajj is invalid; but if he/she is unable to perform his/her own Hajj or his/her Hajj of Nazr or Istijari Hajj (Hajj by hire) is not limited to the same year, there is no difference of opinion among the Islamic jurists that the individual may not act on behalf of another. Unlike the past Islamic jurists, the contemporary jurists distinguish between ancillary and principal excuses and as afar as principal excuse is concerned, they maintain that: if an individual is excused from performing Hajj acts, he may not act on another’ s behalf; otherwise, it is difficult to be satisfied by his Hajj and it does not release the principal duty-bound, but there is no single opinion among them regarding the ancillary excuse.

One of the Usuli issues in charge of acquiring a proper means for discovering the religious percepts is the authority of certitude. The famous Usulis maintain that the Usuli certitude has inherent authority and as a result, consider it as the basis for recognition in Islamic jurisprudence and Usul al-Fiqh and, falsely, refer to it as knowledge; nevertheless, many later Usulis deny the authority of Usuli certitude and believe that the basis of authority is achieving the actual percept, not the mere spiritual condition of the duty-bound. Therefore, it is necessary to consider certitude as the basis of recognition, subject to its correspondence with reality i. e. the logical certitude which is the exact and terminological meaning of knowledge. But the more important question is how to acquire logical certitude i. e. knowledge as to religious propositions. It appears that the only certain way to acquire knowledge as to imperative teachings of religion is hearing them from the Divine Lawgiver or the honest reporter.