نشریه مطالعات اصول فقه امامیه
پیاپی 7 (بهار و تابستان 1396)

The scholars of Usul have taken recourse to what is generally known as 'muqaddimat-e hikmat' (lit. preludes of wisdom) in order to conclude that a statement is absolute and unrestricted in nature. 'A speaker being in the state of uttering and declaring' is the first and most important prelude of wisdom. This prelude can be obtained and ascertained by means of a rational principle known as Isalat al-Bayan (lit. principality of declaration). Majority of legal experts and theorists argue that Isalat al-Bayan is confirmed and evidenced by normative conduct of wise men. Based on the preferred view which this study seeks to explain, the main evidence for Isalat al-Bayan is the normative conduct of wise men which is rooted in two things: 1. The requirement of the speaker's nature and the speech, 2. The requirement of the nature of social life and facilitation of social conversations. On this basis, if we take the normative conduct of rational agents into consideration, it will serve as suitable evidence of Isalat al-Bayan or the principality of declaration. Thus, many objections and problems about Isalat al-Bayan to prove the speaker being in a mode of declaring and uttering will be treated and ironed out.

One of the issues about which Shahid Baqir Sadr has adopted a relatively distinct approach in terms of method and content is al-Jama al-'Urfi which is roughly translated as conventional combination. Some of the particular features of this approach is the oneness of the criterion on the basis of qariniyah (contextuality), uniformity of all instances and differentiation of the criterion which serve as the substantiating tools of it. Generalizing qariniyah in all the instances of conventional combination, Shahid Sadr defines hukumat (lit. governance), taqyid (restriction), takhsis (specification) and azhariyat (to be more expressive) as tools of exploration of qariniyah. On this basis, qariniyah serves as the basis for keeping one's hands off the apparent meaning of a general, absolute but governed reason as opposed to the restricted, limited and governing one. Thus, hukumat, taqyid and takhsis are mechanisms which the speaker uses to convey his meanings within a conventional conversation system. Without heeding qariniyah and its function in these examples, overlooking the apparent meaning lacks any corroboration or reason whatsoever.

A sound understanding of the terms and phrases existing in every branch of science constitutes one of the secrets of success in learning that science. Mabadi ahkamiyah roughly translated as the principles of Sharia laws is a new phrase that has been used in more recent books. This phrase has not been used in any books authored by early scholars of Ilm al-Usul.
Some scholars of Ilm al-Usul have considered mabadi ahkamiyah as a third phrase on a par with phrases such as mabadi tasawwuriyah and mabadi tasdiqiyah. On the contrary, some others try to merge mabadi ahkamiya with the two abovementioned phrases. The scholars of Usul use the phrase mabadi ahkamiyah to refer to a series of discussions concerning Sharia law itself regardless of whether or not it relates to a specific subject. Therefore, certain issues such as the definition of Sharia law, division of Sharia laws into wadhei (declaratory), taklifi (defining or prescriptive), zaheri (apparent) and real laws, conflict among the Sharia laws, the initiation of wadhei law being independent from taklifi or their being extracted, the concomitance between amr (command) and nahy (prohibition) are among the themes included in this title.

Sharia laws are categorized into two groups: defining (taklifi) and declaratory (wadhei). The defining laws are ones that extend to man's actions in a binding or discretionary way, whereas wadhei laws are ones that do not directly extend to man's actions. According to Mohaqiq Isfahani, a defining law is "initiation with the motivation of creating a motive". In his view, declaratory laws are not restricted to a specific number and that they include every non-taklifi (or non-prescriptive) laws. Some scholars such as Shahid Thani, Sheikh Bahai, Fazel Tuni and Wahid Behbahani are of the view that declaratory laws are, like the defining ones, a part of the Lawgiver's initiations and considerations. On the contrary, jurists like Shahid Awwal, Shariful Ulama and Sheikh Ansari maintain that the declaratory laws have been extracted from defining laws and the attribution that the former has been legislated by the Lawgiver is not real. There is a third view also whose proponents including Akhund Khurasani have adopted tafsil, an approach which partially accepts both opinions, albeit with some considerations.

Fakhr Razi is one of those scholars who believe that analogy (qiyas) is one of the sources of derivation of Islamic laws. In his book, he has presented arguments to prove his claim. He is one of those who have discussed the authoritativeness and validity of analogy at length. One of the arguments presented by him is from the Quran. In his al-Tafsir al-Kabir and Al-Mahsul, he has presented and discussed several verses on the authority of analogy. In this study, we have examined the authoritativeness of analogy from the Quran according to Fakhr Razi. Thus, we have focused on three verses. Fakhr Razi takes recourse to only one verse in his al-Mahsul and that is the verse 2 of Chapter 59 where it says "So learn a lesson, O ye who have eyes!" However, in his al-Tafsir al-Kabir he has studied several verses none of which substantiates his claim. His arguments are flawed and unacceptable.

One of the important and controversial juristic issues is the definition of Ilm al-Usul especially when it is examined comparatively. In view of the importance of this discussion in Ilm al-Usul, it is necessary to pay attention to the criteria and key components of a perfect definition. Without doubt, a perfect and inclusive definition is one that is characterized by a number of features and has certain components. In Usul or the science of legal theories an inclusive and exclusive definition is one that includes all the practical principles which form an important part of Usul discussion. Moreover, it should exclude jurisprudential rules (qawaed) and lexical issues which have nothing to do with it. Given their precision and careful thought, Muslim jurists have differed over the definition of Usul and have therefore offered various definitions. Therefore, as Akhund Khurasani has said a widely-known definition offered by Imamiyah jurisprudents is faulty and suffers from different problems. Also, Akhund Khurasani's definition is flawed according to Ayatollah Khoei because it is not inclusive and exclusive. Moreover, the definitions given by Sunni jurists also suffer from difficulties.