جستجوی مقالات مرتبط با کلیدواژه "ijtihad" در نشریات گروه "فقه و حقوق"

Criminal policy varies in every era as a way to fight crime according to social transformations. Considering the position of human being in the center of attention and preserving human dignity, this policy has undergone significant changes and has led to the discussion of human rights and has been specially reflected in international documents so that the international community is required to comply and align with these policies. shows The criminal law of Islam has special infrastructures and foundations that seem inconsistent with this development in some places. Apparently, there seems to be a mismatch between the international criminal policy and Islam, but the similarities between the two systems are more than what is seen in the world of science. and politics are expressed. Islamic law operates based on a unique logic that cannot be drawn through the categories provided by classical international law. The purpose of this research is to use the descriptive-analytical method, and with regard to politics Modern criminal and Sharia foundations and capacities of Islamic jurisprudence, which is mostly based on the inherent capacity of Islamic rulings for globalization, expressed the points of difference and similarity, and then by presenting solutions such as evolution and change in the sources of ijtihad, proved the method of having Islamic punishments based on evidence. rationally and figuratively, accepting the signature of corporal punishments based on the acceptance of the validity of the rational way of life and the lack of the validity of the single news in important matters, should also turn the points of difference into alignment and companionship

One of the issues raised under the topics of "ijtihād and taqlīd" is the invalidity of an obligatory act in the absence of taqlīd and caution, which almost all Shi'a jurists believe is invalid. The need to address this issue is because a person, after years of acting without imitation and caution, decides to perform actions with imitation of a mujtahid or caution from then on. Now, if his past deeds are invalid, he will suffer a lot of hardship to make up for his past deeds. In this article, in an analytical-descriptive method and citing library sources, the theories and arguments of Shi'a jurists have been criticized, and the basic question has been answered that, "in the case of action without imitation and caution, are all the past actions of the obligee (mukallaf) are considered void and should be made up for?" "And what is the criterion of the validity or invalidity of such a person's action the opinion of the mujtahid during the action or during the recourse?" By examining the evidence, it has been concluded that if such an action is in accordance with the facts or in accordance with the opinion of one of the two mujtahids during the action and during the reference (valid evidence), it is permissible and valid and does not require the compensation of past actions.

In the Islamic legal system "sharia" as the main source of constitutional law goes beyond the written document and gives content to the norms of the constitution. The idea of ​​an Islamic constitution is neither a mere adherence to the principles of the constitution nor a formalist adherence to its writings, but in fact the same adherence to the spirit of the constitution. In addition, "Ijtihad" and “Maslahah” as two dynamic elements of sharia to deduce sharia rules; Built to suit the needs of each era. In this regard, the study of the nature of the Sharia, which can prevail and influence the principles and concepts of the Constitution as a superior spirit and unwritten norm, compared to the written text of the Constitution; It is essential. The present study examines the position of Sharia in the Islamic legal order as a Hypertext value that has subjugated the identity and foundation of a nation, and also by emphasizing the dynamic elements of the Sharia and their impact on the vitality of this superior norm, tries to clarify the relationship between sharia and the unwritten constitution.

With the industrialization and secularization of culture, the social activities of the institution of religion have been limited and gradually marginalized. Based on this, religious theologians have sought to formulate and expand a faith-based social life and not only harmonize industrial and technological development with their religious identity but also base its construction on religious identity. This effort requires presenting religion as a coherent and universal whole so that theologians can present appropriate theological answers to the needs of contemporary humans. However, the degree to which religion can be systematic depends on how theologians deal with religious propositions and how these propositions are formulated to solve social problems. On the other hand, religion goes beyond determining an individual's personal program, duties, and religious rituals and becomes a critic and founder of social and political structures. Based on this, social systems are founded on the text of religion in society. This article, through a comparative study in Christian and Islamic theology, seeks to address the methodological requirements and how to deal with religious propositions and how to formulate them in solving social problems, focusing on the views and thoughts of Paul Tillich and Ayatollah Khamenei.

Valid custom approved by the Shari'ah is one of the evidences and tools for deducing Islamic rulings. In some cases, it is the most important and sometimes the only document for responding to the daily needs of society in the field of ijtihad (jurisprudential reasoning). The Shari'ah has approved the custom of custom in non-worship matters. Since rational presumptions do not need to be authorized by the Shari'ah, their rationality suffices for their authenticity. This is because the audience of religious rulings are the common people, and the religious orders have been established for them to live better lives. Entrusting the diagnosis of issues to specialized customs is effective in many cases and leads to uniformity in the construction of logic. The custom in question is a precise and tolerant custom that is carefully adapted and recognized. In this case, there is no prohibition in the Shari'ah. It cannot be said that a custom with this characteristic, which is a product of rational nature and as a general theorem of proof, is a proof in the time of the presence of the Infallibles (peace be upon them) and not a proof in the age of absence. On this basis, custom is one of the evidences and tools that can be used to deduce Islamic rulings.

The derivation of a jurisprudential ruling in a certain path and mechanism sometimes faces challenges that the mujtahid must find a solution to get out of it and complete the issuance of the ruling. One of these challenges is the conflict between a narrative reason and a rational reason, the mechanism of reaching its conclusion is the problem of this research, and since it does not have a rich background, it is also an indicator of the novelty of this article compared to similar works. This research in the interdisciplinary geography of jurisprudence and principles, and in a descriptive, analytical way, the process of how to overcome the challenge of the conflict between narrative reason and rational reason has been the focus of its main question. The findings of this research show that in the conflict between narrative and rational reason, if the narrative reason is valid, in the assumption of conflict with unnecessary rational reason, the narrative reason takes precedence, and if the rational reason is one of necessity and certainties, then the rational reason takes precedence over the narrative. The Usulists of Ahl al-Sunnah have a consensus that in the conflict between qiyas and single news, if it is not possible to combine them, the reason of suspicion is preferable; But they differ on which one of these two is preferable; But from the Shiite point of view, due to the inauthenticity of "Qiyas", such a conflict does not arise.

Interdisciplinary research plays a crucial role in the advancement and revitalization of scientific knowledge. By combining expertise from various related fields, it promotes scientific progress and resolves uncertainties, thus clarifying complex concepts. Analyzing and revising jurisprudential opinions to align them with Muslim medical data is essential for the dynamic nature of Islamic interpretation (ijtihād). The article focuses on the method of cleaning (Tahārah) the feet during ablution (Vuzū), specifically examining the anatomy of the Malleolus bones in relation to the term "Ka’bīn" mentioned in the sixth verse of Surah Mā'idah. The prevailing opinion among renowned jurists, as quoted by Allameh Helli, regarding the method of cleaning the feet is subject to scrutiny. The author, based on the concept and positioning of the Ka'b on the human foot, calls for a substantial revision of the related jurisprudential decrees (fatwā) on anointing (maṣḥ) and its procedure. Accordingly, the sufficiency of cleaning the feet, even with a single finger, which is the widely accepted view among Shiite jurists according to Helli, becomes a debatable aspect for ensuring foot purity. Furthermore, medical terminology and anatomical evidence demonstrate that Ka'bīn encompasses both the external and internal sides of the foot. Additionally, data derived from medical osteology of the ankle challenges a significant portion of the jurisprudential fatwā pertaining to the principle of cleaning the feet and its method.

According to the famous (in the meaning of prevailing) view of jurists, ‘Ijtihad’ is a prerequisite for making judicial decisions. Some others permit the adjudication by non-Mujtahid judges. Although both sides of arguments are based on reasoning with references to the Qur'an and the Sunnah, there is an objection to the way of reasoning of both sides, since they have been made in the absence of the analysis of practical process of adjudication and in the ignorance of the element of ‘codified law’. The establishment of the regime of Islamic Republic of Iran and legislative process based on Sharia standards indicates a transformation in the subject of adjudication, requiring reconsideration and reexamination of Ijtihad requirement in the light of such a transformation. The current article reviews the common jurisprudential arguments on Ijtihad requirement for adjudication and analyses its process and stages. Then, with an emphasis on the extent of the influence that religious rulings have on law and human measures, with taking into account the nature of Ijtihad and comparing it with the nature of dispute resolution, accompanied by the consideration of certain requirements of judicial system, such as the uniformity of judicial practices, it will ultimately reinforces the perspective that is in favor of non-necessity of Ijtihad in making judicial decisions.

In Islamic jurisprudence, there is a very important issue under the title of Islamic government, which is the distinguishing feature of the rules of Islamic law compared to other religions. In fact, in the teachings and opinions of Islamic jurists, the concept of political power has been recognized through the recognition of Islamic government. In the meantime, Shia jurists refrained from dealing with the issue of political power as one of the basic and main issues of Shia jurisprudence due to the specific socio-political conditions from the time of the beginning of Islam until the establishment of the first Shia governments. But after the formation of Shiite governments, the issue of political power became one of the most important issues in the field of political jurisprudence. The purpose of the current research, which was collected with descriptive-analytical method and library tools, is to analyze and evaluate the concept of political power in the thought of Shiite jurists. In the end, in light of the evolution of Shia thoughts, it is witnessed that in Shia political jurisprudence, given the openness of ijtihad from its outset to the present time, there have always been new mechanisms for ruling in the society, so that after the Infallible (pbuh), depending on historical conditions, other jurists and Islamic scholars have proposed various theories about political power.

Imami jurists believe that the opening of ijtihad has various effects, one of which is the employment of many people in the field of ijtihad and ifta. Sometimes people who claim to be in the field of ijtihad and ifta may not actually have enough knowledge in this regard, and the fatwa issued by them will cause harm to individuals. It seems that one of the tools by which it is possible to control the above-mentioned possible matter is to install a "mufti guarantee" which itself has countless confirmations in the four sources and due to the distribution of resources scattered in the votes and The views of some jurists have been pointed out, albeit in a small way. Most of the executive mechanism of the mufti's guarantee has been taken.which itself has countless confirmations in the four sources and due to the distribution of resources scattered in the votes and The views of some jurists have been pointed out, albeit in a small way. Most of the executive mechanism of the mufti's guarantee has been taken.

Allameh Feyz Kashani "Mercy be upon him" is a comprehensive scientist in rational and movable sciences, and this has led to different views towards him. His intellectual and argumentative method, as well as his jurisprudential method, which is sometimes close to the method of the fundamentalists, refrained from calling him a akhbari, and in terms of defending his scientific position, considered him among the fundamentalist scholars. He criticizes the principles of jurisprudence and those who believe in it and considers these principles to be taken from theopponents' books. Fayz has tended to the Akhbari school and has gone from learning and compiling the principles of jurisprudence to severe criticism and opposition to the fundamentalists. This scientist, who in his early youth was an expert in the field of the principles of jurisprudence and wrote the book "Critique of the principles of jurisprudence" in this regard, with the passage of time and the influence of his professor Seyyed Majid Bahrani, and then, Molla Mohammad Amin Astarabadi, in later works He has tended to the Akhbari school, but has always observed moderation and in the jurisprudential method is subject to the exact and valuable school of the late Muqaddas Ardabili. Explain his thought through his language and in the mirror of his works.

The argument based on the prohibition of ijtihād against naṣṣ emphasizes the existence of a prior, explicit, certain, definite, conclusive and meaning independent from the reader and interpreter. What is presented in the form of this proposition relies on the interpretive approach of the subject-interpreter. This article research, which was conducted with a descriptive-analytical approach and reliance library sources, shows that such an attitude does not include all interpretive approaches and cannot be cited as a principle-interpretive rule, because apart from the different impressions of the concept of naṣṣ, the way to call a referent (miṣdāq) in terms of proof is also a point of disagreement. Similarly, a distinction should be made between ijtihād against the appearance and ijtihād against the spirit and the intension of the text. The uṣūlī principle, “every ruling is based on a reason on which it was devised” limits the application of the prohibition of ijtihād against naṣṣ; e.g., not cutting off a thief’s hand in a year of famine and delaying the implementation of legal punishment of theft in other cases.

Judging is a subject that received special attention from the perspective of society and scholars of jurisprudence and law. Therefore, in the governance structure, it is deemed as one of the fundamental axes of justice administration. Therefore, the judge is assumed to be the center of justice. In all legal systems, judging, the judge and the judiciary have a special place, but the one who upholds these axes, mete out justice and execute the law is the judge and the justice is dispensed by prudent and fair judges. Hence, the analysis of justice and judge knowledge, one of the primary goals of this research, is of particular importance at the present time. This paper attempts to explore judge knowledge because knowledge is the prelude to the proper administration of justice. The results of this research suggest that judging is a serious matter, and that among the qualities and traits of a judge, the factors of his knowledge and ijtihad are of paramount importance. Now the question raised is that, “Should the judge be a scholar?” “Should the judge's knowledge be limited to ijtihad?” It seems that if ijtihad is seen as essential for a judge, then how will the urgent demand for a judge and the absence of a mujtahid in the current judicial system be solved? And what are the characteristic traits of a mujtahid judge? In light of the questions raised, the present research, which was conducted using document analysis and library study, in form of a jurisprudential and legal review of the knowledge and ijtihad of the judges, sets out to answer the said questions.

As a pioneer of the Salafi school, al-Albani's views deserve attention in various areas of the methodology of Salafi thought. al-Albani's aggressive and anti-Shia fatwas are perceptible in many of his jurisprudence books. Such fatwas arise from his view towards the sources of inference; however, the scope of the authority of sources from aL-Albani's point of view is not fairly clear due to the lack of an extensive and coherent research in this regard. al-Albani has a specific approach in using the four sources of inference i.e. Book, Sunna, consensus and intellect for his own jurisprudential ijtihad. The present paper has been written with the aim of identifying the extent of the authority of those sources from the view point of Nasir al-Din al-Albani. This research, using a descriptive-analytical method, shows that al-Albani considers Quran and Sunna to be of equal ranks in the process of ijtihad and believes in no priority in using these two sources and does not accept a preference between verses and hadiths. In addition, he believes that a hadith narrated by one person has authority with regard to precepts and beliefs. al-Albani defends hadith in a way that, in his opinion, hadith has authority even in case it contradicts Quran. Moreover, he weakens the category of hadiths according to which, all hadiths should be compared to Quran, since he considers their content to be against Quran. Intellect has no proper place in al-Albani’s system of jurisprudence and ijtihad and he generally advocates narration and is anti-intellectualist. In addition, al-Albani considers the consensus which is accepted among Usulis as controversial.

Tahari is a kind of ijtihad effort to repel doubts in a state of necessity by relying on evidence that can often be used in worship and sometimes in other matters. Tahari is related to other words such as ijtihad, tavakhi( seeking the best opinion), inspiration, supplication and examination of fact in object doubts. This method has been rejected by some due to its citation weakness and has been considered as conjecture not sufficing to prove the right, but it has often been accepted as a last resort and in case of necessity and based on the practical life of the Prophet, Imams,  prophet's companions and some other narrated and rational arguments.  The authority of "tahari" is limited to the one who does it and it is non-extensible to others, and it is not considered as a comprehensive religious reason, and depending on the subject, it includes specific taklifi rulings. The research method is descriptive-analytical and the result of the research is the acceptance of stimulus as a practical method in case of emergency and to avoid mistakes and only in some issues.

The temporal and spatial circumstances are causing many metamorphic changes in the world. The role of time and space in the process of ijtihād according to Imamiyya School of jurisprudence is a key concern in this study. The answer to the question regarding the role of time and space is based on the theoretical framework of balance (I'tidāl) concerning the role of time and place in ijtihād in the sense that some rules are beyond time and space. Thus, they are immutable and fixed as they do not change with the change of time and space. Meanwhile, there are certain rules that change subject to the time and space. These changes take place in line with preserving those permanent and unchanging rules. These changes can be expressed in two positions: 1. The position of the essence of the subject that serves a prelude to the derivation of a ruling. Before inferring the ruling, the jurist makes sure he knows the subject from the evidence and also identifies the external subject of the time of inference. 2. The position of the application of the general subject to the external manifestation, which in many cases, like political and judicial affairs, is the duty of the qualified jurist. In fact, rulings are timeless and metageographical, and what changes within a span of time or at a given space are external matters.

Judgment is one of the social special positions which Islamic jurists disagree about the issue of occupying it by women. Scholars rely on the Qur’an, Sunnah, consensus and intellectual evidences to prove their own idea. The condition of being a male for a judge was first raised by Sunni jurists. Sheikh Tūsī was the first Shiite scholar who accepted it, as such before him there was no trace of this condition in Shiite jurisprudence. Allameh Hillī firstly was attributed to the idea of consensus on the masculine condition for a judge, as he thought that the women’ judgment would result in social problems and sedition. Many jurists and scholars followed Sheikh al-Tā'ifa (Tūsī) in this issue, and even later jurists claimed consensus on it. Shahīd 'Awwal in Lum'ah, the author of Miftāh al-Kirāmah, the author of Jawāhir, Sheikh Ansārī, and others say that women may only arbitrate (tahkīm). This research analyzes Islamic documents, using the descriptive-analytical method. Findings show that the prohibition of female judging in Islamic jurisprudence is not definitive, nor an Islamic necessary and definite rule. Most Islamic jurists do not accept getting the judge position for women, regarding their ijtihad and inference. They only accept the position of tahkīm (arbitration) which does not conclude the condition of being a man. Therefore, it is not the case that a woman does not have the right to judge. The issue of the possibility of sedition is also a mutual affair for both men and women, which is not specific to the profession of judgment. The inherent and natural differences between men and women in judicial affairs, like other social occupations, play the least role.

Political jurisprudence as an interdisciplinary tendency in the field of jurisprudence that deals with political issues and issues, although it has existed in all periods of jurisprudence, however, the establishment of the Islamic system with a jurisprudential approach has emphasized its necessity and has, in the present era, become a governmental approach to governing the jurisprudence, favorably and efficiently, with goals such as managing the life of the religion and the people of the world and responding to all the needs of life. Individual, social, and governmental responsibility for believers and citizens of Islamic society. this interdisciplinary tendency in the field of politics, despite sharing with other political science trends such as political philosophy, political theology, political ethics in the system of issues and political issues, in various ways such as method, end and purpose, resources and audience, relevance. They are different and have different characteristics. however, given the content of interdisciplinary tendencies in the political arena, political jurisprudence should be evaluated in the ranking of political arena tendencies, with a priori rank over political philosophy and political theology and a posteriori over political ethics. although the method of political jurisprudence is subordinate to the method of jurisprudence and uses the method of ijtihad in analyzing and presenting rulings, it has a more holistic approach to reason and a minimalist approach to worship. obviously, the scope of political jurisprudence was subject to the conditions of the time and in the time of the jurisprudence's power, it was responsible for analyzing the individual issues of the jurists and, in the case of the social authority of the jurisprudents, it was responsible for analyzing the different aspects of social and governmental life and administering the system of governing the lives of Islamic society.

Historical perspective is one of the methods of understanding religious texts. In this method, any understanding of these texts should be examined under the influence of the context during the period of its issuance. In his Ijtihad method, Ayatollah Boroujerdi has paid specific attention to the historical perspective and it seems that it is the historical perspective in the situation of traditions and historical roots of controversial issues that supports his interpretations of traditions. Through this historical perspective, he had achieved an unparalleled ability to interpret and justify traditions. Therefore, it can be said that he had a special and independent method in Ijtihad with a comparative method. In this article, we would like to briefly introduce the Ijtihad method of this prominent jurist and explain the place of historical perspective in his process of Ijtihad and its characteristics in three areas: 1- Principles 2- Hadith and Narrators 3- Jurisprudence and prove that paying attention to this component prevents abstract discussions in Ijtihad and it will significantly increase the certitude of the intention of the Infallible Imam.

This article provides a comparative analysis of the role of legal philosophy in the development of human rights within Western and Islamic intellectual traditions. The study begins by defining and conceptualizing legal philosophy in both schools, followed by an examination of their historical roots and theoretical foundations. The impact of legal philosophy on human rights development in both traditions is analyzed, including the Enlightenment's influence in the West and the role of Sharia and Ijtihad in Islam. In the comparative section, similarities and differences in legal philosophy between the two schools are highlighted, focusing on the role of the individual and society, the influence of cultural and social factors, and the role of international and Islamic institutions in advancing human rights. The findings reveal that both traditions, despite their fundamental differences, have contributed to the development of human rights from distinct perspectives. These differences and similarities can enhance international cultural and legal interactions and improve legal policy-making at various levels.