The Duties of the Legally Responsible toward the  Discretionary Sphere of the Law (Mantiqat al-farāgh)

One of the emergent topics which has no trace in the words of the early scholars in old ages is referred to as the ‘discretionary sphere of the law’ coined by Martyr Sayyed Muhammad Baqir alÑadr. Though the term has its roots in the time when the government established by the Prophet Muhammad (peace be upon him), its literal meaning as well as the collocation of the two words which bring to mind the idea of the sphere without any laws cannot be accepted and thus it is refuted by religious scholars and even by traditions. Therefore, it is said that by the discretionary sphere of the law it is meant that the sphere lacks the obligatory judgement (obligation, prohibition). Given the conditions and the interests of the Muslims, this non-obligatory judgement (in the forms of permission (IbÁhat), recommendable (istihbÁb) and aversion (karÁhat)) which exists in this sphere can be changed into an obligatory judgement. Now, considering the fact that this research is an applied one in this present condition of society, the article seeks to show who undertakes the responsibility of legislating and making judgements and decisions in this sphere. In other words, who is made responsible to act in this sphere? And How? What rules and regulations should the one who acts in this sphere follow? What is the relation between the governmental decisions and legal injunctions issued in this sphere? An attempt is made to provide answers to these four questions.