جستجوی مقالات مرتبط با کلیدواژه « certitude » در نشریات گروه « فقه و حقوق »

The fact that the judge must reach certitude and then proceed to issue a judgment is a truth acknowledged in the law of proof of claim. Acquiring certitude is subject to a set of norms and rules called "ethics of certitude". Not all certitudes, with different bases, could be considered valid. Regardless of the philosophical and epistemological issues regarding the nature of certitude, how to achieve it is also very important. Relativists believe that the criterion of acceptability and validity of certitudes is their reliance on reason. A valid certitude is a certitude that is justified by sufficient evidence and reasons. A certitude that is not supported by reason lacks epistemological value and validity and cannot be used as a basis for action. The necessity of the judge's compliance with the rules related to the ethics of certitude is higher because judicial certitudes involve important social and practical consequences. The certitude of the judge seriously affects the rights and social affairs of the people; therefore, achieving the certitude is extremely important to the judge. In a descriptive-analytical way, the present article examined and compared the rights of proof of litigation with the criteria of certitude ethics. Whether the judge has the authority to evaluate the evidence freely or whether he has to agree to the provisions of the evidence and issue a verdict based on them are among the most critical challenges of proving a claim.The current study examined proving a lawsuit in the courts from the perspective of ethics of certitude. According to al-Qaida, a judge must follow all the moral rules and knowledge frameworks to gain certitude, and only then can he make his certitude the basis for issuing a verdict. The basic question is whether it is possible to pay attention to these criteria in the court according to the rules governing the rights of proof of litigation and the criteria raised regarding the validity of certitudes. Is it possible that the rules related to proof of litigation conflict with the principles of certitude ethics? One of the most important challenges ahead is the concept of imposing proof on the judge. Some reasons, such as confessions, regardless of whether they convince the judge or not, "must" be the basis for a verdict. Such a concept strengthens the hypothesis that it is basically not important for the legislator to believe in the judge, and contrary to the initial idea, the judge, without certitude and knowledge about the subject of the lawsuit, must also make his decision. On the other hand, the free assessment and the granting of absolute discretionary powers concerning the evidence in the case give rise to the fear of judicial tyranny and disregard for reasons. It seems that a correct understanding of how the judge acquires certitude is related to the fundamental positions in the ethics of certitude. Without paying attention to these original foundations, getting a clear and comprehensive picture of the relationship between reason and the judge's certitude is impossible. Although the prevailing approach in the domestic and international legal systems is that the judge is free to evaluate and accept reason, epistemological investigations and attention to the foundations of moral certitude clarify that certitude gets its value and validity from reason and not vice versa. On this basis, it is not acceptable for the judge to hear (consider) the reason and pass it by without gaining certitude. Either one should argue against the reason, or as long as the light of the reason is clear, one should stick to its implication and believe its contents. In this sense, the imposition of evidence and their priority on the judge's certitude is more defensible than arbitrary freedom in accepting and rejecting evidence.

The present research examines the validity of the rule of certitude and the effect of accepting the validity of this rule in deduction Jurisprudential rulings. Undoubtedly, the acceptance of this rule is dependent on the acceptance of the implications of the narrations mentioned about the validity of Istehhab, and although the famous late Usulists believe that Istehhab traditions do not have the comprehensive authority for both the rules of Istehhab and certitude, and therefore they have removed the institution of the rule of certitude from the evidence of Istehhab, but in their opinion It seems that among the narratives of Istehhab, the narration transmitted by Mr. Sadouq (may Allah be pleased with him) can prove the validity of this rule in its minimal interpretation - i.e., the signing of works based on prior certitude and ruling on the validity of past actions based on that certitude - if the document and evidence are accepted. Also, in the supporting documents of the Wrappers (Faraq) and Passing (Tajavoz) rule, there are interpretations that can be positive for the certitude rule in its minimal interpretation.

The authority of certitude is among the topics whose various aspects do not seem to have been sufficiently investigated in the Holy Quran and the words of Ahl Al-Bait (peace be upon them). The definition of certitude appears to be clear and despite different approaches,  there are few opponents to its absolute unconditionally and excusing feature; however, questions raised in this paper about the certitude of which Quran has spoken, indicates that it is impossible to apply the above said to knowledge and certitude mentioned in Quran and narrations and there is no way to prove its  absolute authority in the narrated sources; rather, a set of verses and narrations indicate that the human beliefs are not the measure and a number of them have no authority.

Confidence is a degree of cognition that does not reach the limit of philosophical certainty but at the same time is stronger than conjectures. It is very effective and necessary to study the degree and criterion of the authority of confidence because most types of cognitions do not reach the level and amount of knowledge and certainty. Although religious texts prohibit acting on the basis of anything other than knowledge, the fact that, basically, logical knowledge and certainty are, rarely, obtained leads us to the point that knowledge in religious texts has a broader concept than confidence. Likewise, confidence is recognized as valid by the wise and has been confirmed by Sharia as a binding authority; because despite the divine lawgiver has contemplated acting on the basis of confidence, it has not been forbidden. Considering the above said findings, confidence is not of inherent authority but at the same time, it replaces different types of certitude whether certitude on the subject or certitude without considering the duty-bound's knowledge.

In the issue of the replacement of presumptive evidence (amarat) and principle with types of certitude (qate), two arguments are put forward:  the first argument is that what kinds of qate these are replaced with. The second is that wether the use of preumptive evidence and principles in place of certitude by men of reason denotes its replacement with certitude. As for the first argument, the fundamentalists expressed different points of view and each has their own reasons and adherents. Out of these, Imam Khomeini believes that presumptive evidence and principles only take the place of the incomplete certitude to the situation, not the complete certitude to the situation, or incomplete or complete descriptive sitution, or the pure situation certitude. As for the second issue, the well-known fundamentalists believe that the presumptive evidence and principles are used as the replacement of certitude, and in case of lack of certitude, men of reason definitely use presumptive evidence and principle in place of certitude on a regular basis. On the contrary, Imam Khomeini believes that the argument for the replacement of presumptive evidence with certitude is basically inaccurate and men of reason have acted upon certitude in its presence and in its absence and the presence of reasonable sign, they act upon that sign and evidence without concern for its replacement or downgrading (tanzil). That is because, from the point of view of Imam Khomeini, validity of the rational presumptive sign does not depend on the validity and reliability of presumptive evidence and complementary aspect of revealing reality, but rather has an independent validity. Based on this, we should not look for legal rendering as complementing the disclosure to the presumptive evidence, to act upon certitude. This study used a descriptive-analytical approach and library resources to examine different opinions and their evidence and emphasize the accuracy of Imam Khomeini's opinion.

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.

The Usulis who came after Seikh Ansari, by dividing the duty-bound conditions into three, have discussed topics of authority in three fields of certitude (Qat), conjecture (Zann) and doubt (Shakk). Their selected opinion with regard to certitude has constituted their basics in the two other fields and affected them. One of the above said opinions concerns the quiddity of certitude. According to the viewpoint of some new Usulis, the appearance of a word denotes the speaker’s purpose and the origin of appearance is the usage intention. Accordingly, the appearance of a word in the mind of addressee or other hearer is realized thorough acknowledgement of the speaker’s purpose and its origin is rational principles. Considering these principles as rational leads to considering acknowledgment and denotation of appearance as definite. Considering denotation of appearances as definite has implications. For instance, the appearances by exiting the scope of al-Amarat al-Zanniya and entering the realm of definite proofs acquire inherent authority and exit by their nature the area of proofs which prohibit acting without knowledge. Therefore, it may be claimed that not only the authority of appearances is the requirement of the primary principle but also acting on the basis of appearances may not be deterred by the lawgiver.

Jurisprudence and Fundamentals of Islamic Law, Tehran University In the methodology of Islamic jurisprudence (‘ilm al-uṣūl), the decisive belief of the religiously accountable (mukallaf) is called certitude (qaṭ‘), which is extended from knowledge to double ignorance. In categorization and explanation of ‘ilm al-uṣūl, the psychological aspect of certitude has been highly emphasized and its epistemological aspect has been neglected. Apart from this issue, careful consideration of the dispersed discourses of the authenticity of certitude indicates that from the viewpoint of the uṣūlīs the authenticity of certitude is ultimately centered around the existence of its epistemological rather than psychological fundamentals, although their approach in stating views and arranging them has been paying special attention to the psychological aspect of certitude. It is
attempted in this writing to explain the necessity of paying attention to the epistemological fundamentals of certitude and clarify the benefits of this approach. Furthermore, this approach is more compatible with theological and narrative principles and provides the possibility of comparison between the discourses of authenticity in ‘ilm al-uṣūl and the discourses concerning the justifiability of propositions in epistemological sciences.

Explanation of notion of the authoritative and surveying its essentials is the most significant problem in the science of Usul al-Fiqh، which is، in turn، rooted in hadiths as well as its own particular theological doctrines. The most prominent Usuli opinions on the problem of authority are presented chiefly on the basis of essential authority of the certitude and conventional authority of authorized conjectural proofs، along with the principle of non-authority. Explaining traditional and theological roots of authority and expounding deficiencies of prominent opinions، the present essay attempts to present more acceptable principles in this connection. It seems that the unified meaning of “authority” in Usuli discussions is “capability of argumentation on the basis of knowledge produced by existence of authorized conjectural proofs، conditional upon not being rejected by the divine lawgiver.” In this structure، authority of authorized conjectural proofs and ways made by the judgment of the wise is treated as the principle and incontrovertible-making and excuse-making of authorized conjectural proofs are treated as being results of existence of spirit of responsibility or fault in trusting authorized conjectural proofs as preliminaries of producing of certitude or confidence. In addition to being more demonstrative compared to the prevailing views، this opinion leads to less contro versial consequences and is more compatible with hadiths on the authority.