نشریه مطالعات اصول فقه امامیه
پیاپی 5 (بهار و تابستان 1395)

It is widely known and stated in the works by recent scholars that the sources of Shi’i thought and derivation of Islamic laws, according to Imamiyyah (Shia), are three: Quran, Sunnah, consensus and intellect. In spite of this extensive reputation in the historic and content-related attitude, there is ambiguity around the fourth source of Islamic law. Thus, when studying the juridical system of every jurist, one must see as to how he defines intellect or reason. Some of the historical manifestations of the proof of intellect are the applicable principles such as the principle of presumed innocence and presumed continuity (Ghazzali, 1420:1/2/217,221) and some others are the methods of understanding and deciphering the speech (Mohaqqiq Hilli, 1418: 1/31). In this study, the viewpoint of prominent jurists from the Shia School of Jurisprudence, from Sheikh Mufid to First Martyr (Muhammad Jamaluddin al-Makki alAmili), have been studied. With a view to the developments and changes in the place of reason in deduction, the innovations and novel thoughts of each jurist have been meticulously pointed out and discussed .

One of the highly important issues within jurisprudence and its principles is the difference between the rules (Qawa’ed) of Usul and those of Fiqh (jurisprudence) and how they are distinguished and applied for derivation of legal rulings. Our understanding of this subject is that the rules of Usul (legal theories) are instruments for derivation and deduction of legal rulings. Thus, they facilitate the inference of legal commandments where the rules of Fiqh do not possess such a characteristic as they are not used to deduce legal rulings but they are guidelines towards subsidiary laws. In other words, the rules of Usul have just an intermediary rule and the rules of Fiqh are simply applied by the duty-bound. For example, the authority of a single report (khabar wahid) and the authority of the outward meaning (zawahir) are means of attaining legal rules but the rule of itlaf (wasting something) or the principle of purity (taharat) are applied to the subsidiary rules. Thus, the rule of Fiqh is a general legal ruling whereas the rule of Fiqh is simply an instrument in deducing and inferring Islamic laws. It does seem that the different definitions of the rules of Fiqh and Usul make reference to a particular aspect of a theoretical and jurisprudential issue and there is no inconsistency between them .

Ilm al-Usul or the science of the principles of jurisprudence is the logic of understanding the apparent meaning and the authority of what is known as proof or evidence. The interplay between the different pieces of evidence is based on their distinction and technical definition. Thus, the definition and recognition of the imaginative and judgmental aspects of the evidence are considered to be among the important issues of this study. The general and absolute definition, its conceptual distinction, impacts and implications are among those important discussions. Despite all efforts made by legal theorists and experts in the field of Ilm al-Usul to define and sort out general and absolute words as well as to explain the differences between these various terms, it seems that there still is some ambiguity as to the meanings, definitions and the application of those terms. In this article, using an analytical and applied method and elaborating on the origin of the ‘general and absolution discussion’, the writer suggests a single criterion for differentiating the area where each of those terms could be used distinctively. He clarifies the borderlines and does away with the ambiguities of this issue.

What is known as murajjihat (lit. preferences) is apparently inharmonious and discordant since some of them corroborate the conflicting chain of narrations while some others strengthen the purpose for which they have been issued and the others simply strengthen the purport of those narrations. Based on late Wahid Behbahani’s approach, certain preferences such as concordance and agreement with the Quran and opposition to the Sunni views precede every preference. However, late Sheikh Ansari is of the view that when two preferences conflict with each other, those narrations which are stronger in their significations and purport and in consonance with the Quran and the decisive tradition of the Prophet (S) are preferred over other narrations. Moreover, the narrations which are more likely to have been issued from the Infallible (AS) are preferred over the narrations which aim to follow a particular direction (jihat). In this respect, the hypothesis that the functions are not different and that the preferences are characterized by such sequence was first raised by late Akhund Khurasani and it was later accepted by scholars of Ilm al-Usul such as Agha Zia Iraqi and, to some extent, by late Sayyid Yazdi .

The relationship between Ilm al-Usul (Principles of Jurisprudence) and logic is among the issues discussed as part of the philosophy of Usul. It constitutes a branch of added philosophies. Added philosophies refer to a set of secondary rational sciences which, through descriptive – analytical method, seeks to study and analyze the principles, groundwork and method as well as the eight headings of the sciences to which they have been added. The subject of induction is among the important discussion in Shahid Sadr’s intellectual system. He is one of the few Muslim philosophers who study the application of induction at length criticizing rationalism and empiricism and offering a new idea on the basis of probabilities and degree of likelihood. The present writing discussing different aspects of this issue elaborates on the application of induction in various areas of legal theories (Usul). The most important cases of the application of induction in Ilm al-Usul, according to Shahid Sadr, are the following: First application: tawatur (multiplicity of the sources of a certain report) second and third: consensus and reputation (shuhra); fourth: the normative conduct of those who lived in the time of the Prophet (S); fifth: normative conduct of the wise; sixth: determining the minter of words: seventh and eight application: commonality of words and synonymy: ninth application: itterad (constancy).

The science of the principles of jurisprudence (Usul-e Fiqh) is an instrumental science that aims to help Fiqh (jurisprudence). Generally speaking, the discussions taking place within this discipline have clear and tangible results in jurisprudence. According to the writer, some of the discussions within the principles of jurisprudence (Ilm alUsul) lack this feature and have no remarkable pratical effect in jurisprudence. One such topic discussed in Usul-e Fiqh relates to Shariyyah realities (or religious truths) and mushtaq (derivative). In this study, the writer provides some details into the history of this discussion and how it got into Ilm al-Usul whereup he elaborates on the issue itself as well as the different views concerning this issue. Thereupon, he proves its redundancy and inefficiency and offers a scientific answer to the consequences and results that have been associated with and ascribed to the discussion concerning haqiqat shariyyah and mushtaq (derivative)